Gunslinging justice: The American culture of gun violence in Westerns and the law 9781526126177

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Why this ritualistic, atavistic formula still works after more than a century is simple: revenge and justice are deeply satisfying fantasies, and the genre’s gun fetish reifies core national tenets like individual liberty, economic opportunity, and self-reliance. How the Western genre endures, undergoing changes in style and iconography that enable it to resonate anew, is a more complicated question. It is the subject of this book. Justin A. Joyce is Research Associate to Provost McBride at Emory University and Managing Editor of James Baldwin Review Cover: Gary Cooper on the set of High Noon (Sunset Boulevard/Getty Images) with a John Wayne waxwork

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GUNSLINGING JUSTICE

While the genre’s climactic shootouts may look like a masculine opposition to the codified American legal system, this gun violence is actually enshrined in the development of laws regulating self-defense and gun possession. The violence of a seminal Western text like Owen Wister's 1902 novel The Virginian or the classic 1952 film High Noon, seeks not to oppose ‘the law’ but to expand its scope.

JOYCE

Gunslinging justice presents a new take on an old genre, reading Westerns alongside the historical development of the American legal system. Scholars have interpreted the Western as either an expression of masculine anxieties over economic and social transformations or a fantasy of swift, extralegal violence at odds with the procedural complications of American law. This book argues instead that, when examined alongside changes in justifiable homicide laws and gun rights jurisprudence in the United States, Westerns are less ‘anti-law’ than they appear.

GUNSLINGING

JUSTICE

THE AMERICAN CULTURE OF GUN VIOLENCE IN WESTERNS AND THE LAW

JUSTIN A. JOYCE

gunslinging justice

Gunslinging justice The American culture of gun violence in Westerns and the law Justin A. Joyce

Manchester University Press

Copyright © Justin A. Joyce 2018 The right of Justin A. Joyce to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library

ISBN  978 1 5261 2616 0  hardback

First published 2018 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset in 10.5/12.5 pt Baskerville by Servis Filmsetting Ltd, Stockport, Cheshire

In loving memory, I dedicate this book to my father, Scott A. Joyce. Though he seldom rode a horse and never brandished a pistol, he taught me more about justice and masculinity than 100,000 horse operas ever could.

Contents

Figures page viii Acknowledgements xi 1 2 3 4 5 6 7

Introduction: the warp, woof, and weave of American gun violence 1 ‘A kind of wild justice’: revenge and constitutional commentary in the Western 28 No retreat: American self-defense doctrine 48 American gun rights: from national defense to self-defense 69 The guns that ‘won the Western’: firearm iconography in Western literature and film 89 Guns and governmentality: normative masculinity and disciplined gun violence 128 ‘Deserve’s got [everything] to do with it’: property, process, and justice in Unforgiven 172 Old dogs and new tricks: race and justifiable homicide in neoliberalism’s Western imagination 196

Bibliography 227 Index 242

Figures

  1 Paul Newman as Judge Roy Bean in The Life and Times of Judge Roy Bean. Directed by John Huston. First Artists Co., 1972. DVD 29   2 Clint Eastwood as Jed Cooper in Hang ’Em High. Directed by Ted Post. The Malpaso Company, 1968. DVD 36   3 Rendering of ‘Wild Bill’ Hickok and Dave Tutt duel. Harper’s New Monthly, February 1867. Courtesy of Cornell University Library, Ithaca, NY, Making of America Digital Collection 49   4 ‘Shooting lesson’ with Edward Norton as Harlan and Rory Culkin as Lonnie in Down in the Valley. Directed by David Jacobson. ThinkFilm Co., 2005. DVD 91   5 Thomas Cole, Scene from the “Last of the Mohicans”: Cora Kneeling at the Feet of Tanemund, 1827, oil on canvas. Public domain, www.wikipaintings.org/en/thomas-cole/scenefrom-the-last-of-the-mohicans-cora-kneeling-at-the-feet-oftanemund-1827 95   6 Frederic Remington, The Cowboy, 1902. Oil on canvas. Public domain, https://commons.wikimedia.org/wiki/ Category:Frederic_Remington#/media/File:The_ Cowboy,_1902,_by_Frederic_S._Remington.jpg 96   7 Buffalo Bill dime novel cover. Prentiss Ingraham, Adventures of Buffalo Bill from Boyhood to Manhood (1882) in Beadle’s Boy’s Library of Sport, Story and Adventure, 1:1 (New York: Beadle & Adams). Courtesy of Kent State University Library, Kent, OH 102



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  8 James Stewart as Lin McAdam in Winchester ’73. Directed by Anthony Mann. Universal Pictures Co., 1950. DVD 112   9 Stephen McNally as Dutch Henry Brown in Winchester ’73. Directed by Anthony Mann. Universal Pictures Co., 1950. DVD 113 10 ‘The Gun that Won the West.’ Intertitles from Winchester ’73. Directed by Anthony Mann. Universal Pictures Co., 1950. DVD 114 11 Emilio Fernández as General Mapache in The Wild Bunch. Directed by Sam Peckinpah. Warner Bros.-Seven Arts Co., 1969. DVD 122 12 Colt magazine advertisement, Colt’s Patent Fire Arms Manufacturing Co., September 1955 129 13 Brandon deWilde as Joey Starrett in Shane. Directed by George Stevens. Paramount Pictures Co., 1953. DVD 131 14 ‘The Gun That Won the Westerns.’ Advertisement for Roy Rogers tribute pistol, October 1991. American Rifleman. Courtesy of Richard J. Daley Library, University of Illinois at Chicago 134 15 Joan Crawford as Vienna in Johnny Guitar. Directed by Nicholas Ray. Republic Pictures Co., 1954. DVD 147 16 Pippa Scott as Lucy Edwards in The Searchers. Directed by John Ford. C. V. Whitney Pictures, 1956. DVD 149 17 Lee Marvin as Liberty Valance and James Stewart as Ranse Stoddard in The Man Who Shot Liberty Valance. Directed by John Ford. Paramount Pictures Co., 1962. DVD 153 18 James Stewart as Ranse Stoddard and Lee Marvin as Liberty Valance in The Man Who Shot Liberty Valance. Directed by John Ford. Paramount Pictures Co., 1962. DVD 156 19 John Wayne as Tom Doniphon, ambushing Lee Marvin as Liberty Valance in The Man Who Shot Liberty Valance. Directed by John Ford. Paramount Pictures Co., 1962. DVD 157 20 Woody Strode as Pompey in The Man Who Shot Liberty Valance. Directed by John Ford. Paramount Pictures Co., 1962. DVD 158 21 Vera Miles as Hallie Stoddard in The Man Who Shot Liberty Valance. Directed by John Ford. Paramount Pictures Co., 1962. DVD 160

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Figures

22 Anna Levine as Delilah and Francis Fisher as Strawberry Alice in Unforgiven. Directed by Clint Eastwood. Malpaso Productions, 1992. DVD 23 Morgan Freeman as Ned Logan and Gene Hackman as Little Bill Daggett in Unforgiven. Directed by Clint Eastwood. Malpaso Productions, 1992. DVD 24 Timothy Olyphant as Raylan Givens in Justified. ‘Fire in the Hole,’ written by Graham Yost. FX Broadcasting, March 16, 2010 25 Cleavon Little as Sheriff Bart in Blazing Saddles. Directed by Mel Brooks. Warner Bros. Co., 1974. DVD 26 Jamie Foxx as Django Freeman and Christoph Waltz as Dr. King Schulz in Django Unchained. Directed by Quentin Tarantino. The Weinstein Company, 2012. DVD

184 188 200 210 217

Acknowledgements

Portions of this book have previously appeared in different formats. Commentary on Justified appeared in Western American Literature 47:2 (2012), pp. 175–99. I’m grateful to Western American Literature and the University of Nebraska Press for permission to reprint and adapt this material. Commentary on Deadwood appeared in The Last Western: Deadwood and the End of American Empire, eds Paul Stasi and Jennifer Greiman (2013), pp. 107–27. I’m grateful to Bloomsbury Academic, an imprint of Bloomsbury Publishing Plc. for permission to reprint and adapt this material. Commentary on Unforgiven appeared in The International Journal of Organization Theory and Behavior 17:2 (2014), pp. 217–35. I’m grateful to Emerald Publishing for permission to reprint and adapt this material. I’m grateful to have received assistance for this project in various ways—from funding for research or conference travel to their extensive resources and wonderfully helpful librarians—from the University of Illinois at Chicago, Northwestern University, and Emory University. Supporters and interlocutors from these and other institutions have been crucial to this intellectual journey as well. Terry Whalen, Christian Messenger, and Stephen Engelmann, along with Brain J. Sheerin, Mathias Nilges, James Arnett, Matthew Wadland, Pete Franks, Todd McCutcheon, Bill Barnett, and Douglas Field, all helped to nurture the project through its different stages. Matthew A. Lang should be acknowledged here too, for his excellent research assistance. Mark Canuel and Virginia Wright Wexman deserve special recognition; any

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clarity in my thinking, and most especially my writing, are a credit to their diligence. For clarity and perspective on the rest of life, along with a healthy dose of challenge and a seemingly infinite well of encouragement, I am lucky to have my twin brother, Jason, and my mother, Judy, always at my side. I’m thankful for the inspiration, comradery, and friendship I receive each day from teammates on the men’s gymnastics team at the University of Illinois at Chicago, long after our competition days have faded. I will be forever grateful to ‘CJ’ Johnson for inviting me to be a part of this inspiring tradition. The numerous obstacles to publishing a book would have been simply insurmountable without Dwight A. McBride. His unceasing encouragement, support, guidance, professional model, and friendship have buoyed both my spirits and aspirations immeasurably. My children, Sarah and Scott, have brought great joy, renewed purpose, and a powerful new perspective to my life. I’m eternally grateful for the opportunity to be their dad. This book would be impossible without my friend, collaborator, co-parent, champion, and spouse, Katy: thank you will never be enough.

Introduction: the warp, woof, and weave of American gun violence Since a Foucauldian analysis structures this book, it seems fitting to start with a confession: I am not a fan of Westerns. While I have come to appreciate the formula’s rich and varied history, I have long been, and continue to be, somewhat embarrassed by the form. Working on a genre so profoundly indebted to—and, it must be admitted, so often expressive of—a horrific legacy of racial, sexual, and economic violence, critics of the Western often find themselves with much to answer for. This answering, this compulsion—whether it is internally motivated or externally prompted—not merely to explain, but indeed somehow to apologize for, what the Western genre has meant in American culture is most keenly felt in conversation, both casual and professional. Gerald Graff and Kathy Birkenstein’s book on academic prose, They Say/I Say: The Moves that Matter in Academic Writing, likens much of the work we do to attending a complicated cocktail party.1 You move around among groups of people, working the room as it were, talking a bit here and there about the assortment of things that people typically discuss in such a setting. Just as it is good form in social conversation to acknowledge what someone else has said, so an academic argument must be structured very similarly, as if in reply to what ‘they’ have already said, as if adding to a discussion we imagine has already begun. While it has long been a cornerstone of academic work to properly contextualize, this unpacking of the profession’s rhetorical tropes is a particularly useful illustration of the importance of situating one’s argument within an existing discourse. For an interdisciplinary critic working with a framework that combines the conceptual terrain of several fields, the need to situate one’s work properly in relation to multiple fields

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makes this problem even more acute, because one’s contribution must announce its place within rather diverse discursive regimes. In many circles my association with the Western genre carries, inevitably, assumptions and connotations that are, frankly, unnerving. As an Anglo American man, when I tell people that my research is on the Western genre, it is often clear that they imagine a one-to-one correspondence between what they think the genre is ‘about’ and my own political views. The questions people ask me indicate just some of the connotations the genre carries. When I tell people about my interest in the genre’s articulations of Anglo ascendancy, I am often asked, ‘But don’t you think that the genre is racist and sexist?’ When I elaborate further on my interest in the genre’s relationship to gun violence, it is surprising how often I am asked some version of this follow-up question: ‘Do you own a gun?’ As a counterpoint, after hearing of my work as an African Americanist who studies slavery, no one has ever asked me if I thought slavery was a good thing. It is almost as if any conversation about the Western genre is somehow reminiscent of an awkward intervention with a deeply beloved but intensely flawed personal relative: the racist grandfather, the misogynist uncle, with whom we’d rather not admit kinship. For reasons that I hope to make clear in the following pages, the relative who metaphorically stands in here for the Western genre is almost always a man, and his epithets and derogatory invectives can never be fully explained away. It’s not enough to say, ‘Well, he’s old, his views are from a different time.’ Despite countless dismissals and more than a few ‘obituaries’ in the history of Western criticism, the genre continues to capture the American imagination. I aim in this book to explain in part why we continue to utilize the Western as a mode of cultural expression despite its anachronistic nature. Neither is it sufficient to regard one’s racist grandfather as somehow an isolated instance, as if the terrible things he says about people somehow do not matter because ‘that’s just his view.’ The thematic and ideological tenets of the Western are not just profoundly influential, but also widely diffuse in American culture. I aim further to elucidate several of these correspondences and resonances. It is, however, crucial to point out that, for all Grandpa’s flaws, it does represent real progress that he no longer uses the word ‘nigger’ in public. The Western genre’s evolution, I intend to show, has also been progressive. By noting that I am not a ‘fan’ of Westerns, I do not mean to say that I have never enjoyed any of the films or novels I have watched or



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read over the last decade spent working on this project. I have found many that I like, many that I would rank among my favorite films or novels, not just within the genre but within either medium writ large. The Man Who Shot Liberty Valance (1962) is not only a great Western; it is one of the greatest films of all time. I have also found many with which I identify quite strongly, and it is perhaps this identification that is so alarming, both personally and critically. It is an interesting irony to note, finally, that even the genre’s staunchest critics, when pressed, will more often than not admit to a deep personal investment in at least one or two Westerns. That this identification is shared by such a wide range of people speaks volumes about the genre’s continued saliency in American culture. Like many scholarly books, this project sprouted from seeds sown in graduate school. Completed in 2010, the first draft of this book was about the American Western genre, the Second Amendment, and self-defense. Composed in earnest on the heels of the landmark Supreme Court case District of Columbia v. Heller (2008), and amidst yet another spate of successful Westerns in a variety of media—that again prompted much critical wrangling over classificatory schemata and terms such as ‘classical,’ ‘revisionist,’ and ‘post’—the topic was timely enough to be a good candidate for a monograph. And so I began to write this project anew. The transition from graduate study to monograph entails a process of revision and reinterpretation. What was written for a small committee of like-minded mentors and colleagues must be expanded and explained anew for a larger audience. This translation of material from one medium and audience to another, naturally, takes some time, it being no small matter to rewrite a book. Too much of this writing time, early in one’s scholarly career, is overtaken by the other pressures of life, naturally. Amidst the sluggish pace of academic humanities scholarship, then, spending five to six years crafting a decade’s worth of research into a monograph seems, well, natural. The completion of this book in 2017, however, has been unnaturally complicated by a number of sensational incidents of gun violence, wide-ranging legislative changes that have seriously affected how we adjudicate self-defense, and a renewed national uproar regarding this country’s systemic problems with domestic gun violence. I am referring, of course, to the now infamous shooting of Trayvon Martin by George Zimmerman in Florida in 2012; the arrest and conviction of Marrissa Alexander, also in 2012, for firing a warning shot to repel an attacker within her home; the mixed results in the attempted murder prosecution

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of Michael Dunn in 2013; and the now notorious ‘Stand Your Ground’ laws that, at the time of this writing, have been codified in dozens of states and have been pivotal in numerous other sensational ‘self-defense’ cases in recent years. Social media ‘activism’ has also arrived on the scene, most notably in the vehement reinterpretation of a seemingly innocuous statement such as ‘Black Lives Matter,’ and the deployment of other hashtags, ‘likes,’ and trends as attempts at political speech. The upshot of these recent legal developments is a paradigmatic shift in the ways the American legal system adjudicates homicide. The concept of a paradigm shift is important here because, quite simply, it connotes the passage of time, reflecting a history of how things have been done or thought before and after the shift. While the sky may be falling for other reasons, it is not because America has never before confronted the issue of self-defense, or has just now begun to consider self-defense as a special issue among an armed citizenry. Indeed, one of the core aims of this book is to trace the history of nineteenth-century American jurisprudence, which transformed the English common law obligation to retreat ‘to the wall’ into a far-reaching doctrine of legally justifiable homicide. Beginning with Florida in 2005, however, this common law tradition, a matter of precedent and jurisprudence, has been increasingly codified in a wave of legislative actions across numerous states. This is no small matter in any legal realm, much less for decisions regarding when it is justifiable to kill another person. Beyond the expansion of the disciplinary apparatus of neoliberalism—also no small thing—the continuing codification of justifiable homicide merits reflection on the interwoven network of normative assumptions, evaluative frameworks, and overdetermined language within the putatively objective realm of ‘the law.’ Put another way, legal codes, like all language, operate in intersecting and entwined discursive regimes. Beyond self-defense, two other discursive regimes are crucial to both my analysis here and the development of this book: another Supreme Court ruling on the Second Amendment, and yet more popular and critically successful television and Hollywood Westerns. This book represents my best efforts to trace the coincident emergence of, and continued resonances between, the discursive regimes of this component of the American legal system and our most enduring popular genre, the Western. The aforementioned 2008 case, District of Columbia v. Heller, unequivocally granted citizens the right to keep and bear arms wholly apart from militia duty, explicitly championing ‘self-defense’ in a resounding



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dismissal of the phrase ‘a well-regulated militia’ in the first clause of the Second Amendment. Some legal confusion and much wrangling ensued, however, largely because the Heller case was about the federally administered District of Columbia. Emboldened by Heller’s language, litigants subsequently successfully overturned state gun restrictions, most notably in McDonald v. Chicago (2010). This second case is important because it continued to champion, à la Heller, an individual right to gun ownership absent any militia connection and clarified the issue for future state cases. Because the watershed moment in my analysis of the entwined evolution of the Second Amendment and American self-defense doctrine is the Heller opinion’s valorization of self-defense as the ‘sole lawful purpose for owning a gun,’ however, I have retained the original focus on this case for this book. The final Western in question here is Django Unchained. Released during the Zimmerman trial in December 2012, the film was successful at the box office, was critically acclaimed, garnered several awards— including two Oscars—and ignited no small amount of controversy about its language and manipulation of history. In short, the film meant something at this moment. As such, its impact points up the work cultural products do in the world. Highly stylized, the homage to the genre with which Tarantino has been flirting in almost all his films thus far, Django Unchained’s casting, plot, and hyperbolic violence resonated with contemporary anxieties. When the Western continues to matter in American culture it ought to give us pause. Why this ritualistic, atavistic formula still works after more than a century is, at heart, rather simple: revenge and justice are deeply satisfying imaginative fantasies. Furthermore, the Western genre’s gun fetish reifies several core national tenets, such as individual liberty, economic opportunity, and self-­reliance. How the Western genre has endured, the changes in the style and iconography that enable a staid genre to resonate anew, is the focus of this book, and how Django Unchained works in the ‘post-racial’ age of Obama is the topic of this book’s closing analysis. I do not attempt here to ‘solve’ any of the governmental, jurisprudential, or legislative problems associated with gun violence. To quote Toni Morrison, ‘I intend to outline an attractive, fruitful, and provocative critical project, unencumbered by dreams of subversion or rallying gestures at fortress walls.’2 This scholarly book, then, is primarily about a genre, and secondarily about its relationship to other threads within our cultural tapestry of gun violence. Extant criticism about the Western has had much to say about the genre’s ideological underpinnings and its

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discriminatory representations of gender and race. Much attention has been paid to the reasons for using a gun, but surprisingly little has been said about the specificity of these exhibitions of violence, and even less about the interrelationship between an immense cultural tradition that glorifies gun violence and a legal system that uniquely permits its citizens to carry guns even as it continues to broaden the limits of justifiable homicide. My approach to the Western is unique because my research brings together the genre’s changing representational and iconographic tropes and paradigmatic shifts in the American legal system. By focusing on law and literature, or law and film, my work breaks from psychoanalytic perspectives, which have long dominated studies of film and legal discourse. I seek instead to historicize and contextualize the stylistic tropes of the genre across varied cultural and social forms. My interdisciplinary readings of the work cultural forms do in the world trace intersections between discourses—intersections which occur, overlap, and expand within specific contexts. It is these historical moments that we must juxtapose with our interpretive frameworks. By examining the evolution of entwined legal paradigms alongside the changed emphases, narrative arcs, and representational strategies of the Western genre, Gunslinging Justice demonstrates that the relationship between a society’s legal system and its cultural products is more complex than either a socioeconomic determinism or a necessarily reactionary conservatism. The foregoing analyses of a popular genre and legal discourse are not, in other words, bound to any causal claims. It would be foolish to think that the only correspondence between a cinematic and legal tradition should be teased out based on whether or not one directly caused the other. Rather, as Orit Kamir has suggested, ‘law and film are two pivotal discourses that both reflect and refract fundamental values, images, notions of identity, lifestyles, and crises of their societies and cultures … there is a significant correlation between their parallel functions. Law and film are dominant participants in the construction of concepts such as subject, community, identity, memory, gender roles, justice, and truth.’3 It is perhaps important to be explicit here that a core assumption guiding this book is that popular genres provide emotionally satisfying resolutions within an imaginative framework for otherwise irresolvable conflicts or inconsistencies within other domains of culture. Surely the highly polarized and bitterly partisan gun and self-defense debates that have played out over the course of American history are prime candidates for some imaginative working through. As Austin



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Sarat, Lawrence Douglas, and Martha Merrill Umphrey note, ‘the moving image attunes us to the “might-have-beens” that have shaped our worlds and the “might-bes” against which those worlds can be judged and toward which they might be pointed.’4 The quite anxious repetition of the gunslinger’s climactic violence suggests that the Western has worked in the world to expand the limits of our American imagination as to when, why, and how personal gun violence can be justifiable. Perhaps ultimately that explains why the Western still survives. The genre’s survival, I will be arguing, is related to persistent ambiguity and inconsistencies within American gun legislation and self-defense laws. To understand a part of the 200-year impact of this long ‘working through,’ we shall move forward and backward through a few hundred years of American history, literature, film, and television. To set the scene properly, though, we begin our analyses just ten years prior to this book’s publication. After seventy years of silence on the matter, in June 2008 the Supreme Court ruled in District of Columbia v. Heller that a local handgun ban in Washington, DC was unconstitutional.5 The United States’ highest court had heard Second Amendment cases only a few times and, until District of Columbia v. Heller, not since 1939, so the ruling in Heller was hotly anticipated. The majority ruling unequivocally held that ‘The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.’6 Given the explicit connection between gun ownership and self-defense within the home, many saw this ruling as an opportunity to challenge similar gun regulations at the state level, and so renewed public, political, and ultimately juridical wrangling over gun rights ensued. Commenting on the Heller ruling, Chicago’s Mayor Richard M. Daley ardently rejected any broader sanctioning of private gun violence. Characteristically brash, the Mayor vowed to fight lawsuits against Chicago’s handgun ban and refuted the Court’s opinion: ‘Does this lead to everyone having a gun in our society? … If [the justices] think that’s the answer, then they’re greatly mistaken. Then why don’t we do away with the court system and go back to the Old West, [where] you have a gun and I have a gun and we’ll settle it in the streets?’7 For my purposes, what’s interesting about Mayor Daley’s comment here is neither his rejection of the Court’s reasoning nor his hyperbolic equating of the ruling to ubiquitous gun  ownership and use, but rather his invocation of the ‘Old West.’ Daley’s commentary uses a vivid and powerful cultural

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symbolism associated with guns, calling up images of a mythical West where guns resolved every conflict. Such imagery, evoking a frontier where guns replaced legal redress as the primary mode of dispute resolution, owes more to the imagined ‘Wild West’ of literature and films than to any actual time or place in American history. Daley invokes the image of John Wayne, not the actualities of the late nineteenth century. In short, Daley’s allusion recalls Westerns instead of ‘the West’ and, as such, not only resonates with a rich cultural tradition but also points up this genre’s cultural work of mediating normative notions of gender and justifiable homicide that have long underlined widespread private gun violence in the United States. Set on a ‘lawless frontier,’ Westerns are quintessentially dramas about the limits of the American legal system. The genre’s climactic gun violence has therefore been read as a symbolic opposition between the ideals of ‘the law’ embodied in the ‘civilized’ American legal system and a putatively more ‘savage’ system of justice that privileges gun violence as a means of resolving disputes. Consider, for example, a running joke that is featured in the 1939 Western Jesse James, whereby the town’s newspaper editor continually lambasts various institutional figures in a series of scathing editorials. The first editorial sets out the pattern: ‘If we are ever to have law and order in the West, the first thing we gotta do is take out all the lawyers and shoot ’em down like dogs.’ The joke in Henry King’s film plays out in other editorials, of which we hear only the beginnings, which all share this rhetorical pattern. They differ only regarding the profession targeted for critique, so that by the end of the film the editor’s solution to the problem of lawyers is the same as that prescribed for railroad presidents, bankers, deputies, and even governors: ‘Shoot ’em down like dogs.’ In the West, explains the editor, dispute resolution is best dispensed from the barrel of a gun: ‘It’s the lawyers who are messin’ up the whole world. Ten years ago we didn’t have no lawyers and we got along fine. Man killed somebody, and then somebody killed him, and the marshal shot ’em all and that was the end of it.’ By this logic, gun violence is the preferred method for solving problems, and anyone who ‘interferes’ with it, particularly lawyers, ought to be shot down like a dog. The newspaperman’s invectives are no doubt meant to provide comic relief, but the rhetorical structure is dear to the heart of the Western genre. Indeed, the editor’s sentiments establish an opposition between, on the one hand, a clean, decisive ‘law of the gun’ and, on the other, a muddled American legal system. In the world of the Western, the



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procedural focus of American law gets in the way of justice. The genre embraces justice by gun violence rather than by trial, and has therefore often been read as ‘anti-law.’ From the early dime-novel fascination with such outlaws and renegades as Billy the Kid and Jesse James, through depictions of lynching in Owen Wister’s 1902 novel, The Virginian, and the film The Ox-Bow Incident (1943), to the guns-blazing heroics of films such as Rio Bravo (1959), High Noon (1952), and Shane (1953), through the darker critiques of The Gunfighter (1950), The Wild Bunch (1969), and Unforgiven (1992), to the postmodern pastiche of Django Unchained (2012), the Western has nourished a vision of social organization and a means for delivering justice that operates outside the official parameters of American law, relying on a gunslinging hero to uphold order. Indeed, the editor’s sentiments establish an opposition between a decisive ‘Western Law,’ or the ‘Law of the Gun,’ on one hand and a convoluted American legal system on the other that is integral to the genre’s formulation and enduring reception. I argue, in fact, that this opposition is progressively undone in the genre’s formulaic shootouts. While Wild West shootouts may seem to represent an alternative to the codified and mediated American legal system, such gun violence is actually enshrined in the development of American laws regulating self-defense and gun possession. The cherished antipathy between ‘the law’ and the Western’s ‘law of the gun’ is, in short, unfounded. Gunslinging Justice finds and explores intersections between these two seemingly disparate arenas—popular culture as encoded in the genre of the Western and the American legal system’s regime of gun regulations—in an examination of their interwoven co-evolution. I take this introduction’s subtitle from a line in the recent HBO series Deadwood, in which Ian McShane’s villainous and problematically heroic character, Al Swearengen, invokes the metaphor of the warp and woof in weaving in reference to the ‘tapestry’ of his story. In this story, as told to the town’s newspaperman, the overriding interest of the town of Deadwood is the orderly conduct of commerce, regardless of the violent means required to achieve such an end. In weaving terminology, the warp consists of the threads that run vertically on a loom, while the woof consists of the threads that are woven horizontally across the warp to make fabric. Once woven, the warp and the woof are inseparable from each other, intertwined in a finished tapestry. So too are the legal and cultural discourses of justifiable violence in America inseparably woven together. This particular tapestry includes in its threads not only broad

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social and cultural acceptance of gun violence but also a political acceptance that is still expanding today. In this book I therefore inspect the richly textured fabric of American gun culture, with the broader cultural threads forming the warp and the gradual transformation of self-defense doctrine in the American legal system forming the woof. Together, the evolution of these cultural and legal domains forms a uniquely American fabric that has transformed how Americans view guns and gun violence and how the courts adjudicate cases in which guns are used, ostensibly, in self-defense. Gunslinging Justice focuses, then, on two unique paradigms in American law, the self-defense justification for homicide and the closely affiliated right to own guns. I have singled out these two paradigms because they form a constellation of doctrines, judicial practices, and normative regimes that are integral to the Western’s depiction of gun violence, underwriting both the narrative justifications for gun violence and the iconographic staging of such scenes. American law and culture have long considered guns and self-defense as two sides of the same coin. One of the chief aims of Gunslinging Justice is to historicize the Western as an expression of anxieties, tensions, and inconsistencies within the American legal system. Accordingly, I argue that the interwoven evolution of American self-defense jurisprudence, gun rights, and the Western genre has had significant implications for the normative definition of the ideal American citizen as male, Anglo … and armed. The first chapter engages with interdisciplinary scholarship on legal systems and revenge as I argue that the Western, like other genres that explicitly worry violence, has informed and been influenced by paradigmatic shifts in the American legal system. The second chapter outlines the most important of these juridical shifts, the transition wrought by American self-defense doctrine from the English requirement to ‘retreat to the wall’ to the American freedom to stand one’s ground and repel force with force. This freedom is, quite plainly, the freedom to kill, and represents a massive transformation of the organization of power in the hands of citizens. Equally important to this unique development of American law and to the Western’s glorification of gunslinging heroics is the constitutional guarantee of gun possession, a guarantee I explore in the third chapter by examining Supreme Court cases. The two chapters on developments in the American legal system are intended, in part, to provide useful outlines for humanities scholars who are perhaps unfamiliar with this legal discourse. Importantly, however, over the course of these chapters I also argue that the shifting conception of ‘self’-defense,



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from that of a collective duty to that of an individual right, enforces a rhetorical shift to normativity and objectification that is concomitant with the rise of modernity and the formation of dispersed, interrelated networks of power that create individuated subjectivities—what Michel Foucault has called ‘biopower.’8 The remaining chapters return more solidly to the Western genre. The fourth chapter traces the changing iconography of guns through relevant literary texts of the nineteenth century and cinematic texts of the twentieth century. I argue in this chapter that the Western’s iconographic emphasis, which shifts from the primacy of accuracy to that of speed, enacts a variously coded symbolism of morally upright and justifiable violence at pivotal moments within the genre’s long history. The fifth chapter recalls the language of normativity and traces its role in the Western and legal discourse. I argue here that the Western gunslinger’s masculinity disciplines, or tames, the potential for radically disruptive personal violence that seems inherent to the liberties that inform American self-defense doctrine. The final two chapters focus more particularly on some of the legal developments and cultural texts that together mark these pivotal moments from the late twentieth and early twenty-first centuries. The sixth chapter examines justice as a semiotic concept, situating Clint Eastwood’s Unforgiven in relation to a paradigmatic shift in the extension of due process protections for minorities as well as the transformation of American self-defense doctrine brought about through legal transitions in the way the self-defense claims of battered women are adjudicated. The seventh and final chapter considers depictions of justifiable gun violence in our current neoliberal moment, with readings of the FX television series Justified (2010–2015) and Django Unchained alongside examinations of the recent trend toward codification of increasingly aggressive self-defense laws and a growing public awareness of racial and gendered disparities within the United States’ fabric of gun use, authorization, and regulation. ‘Introductions’ having the format they do in academic discourse— setting expectations for what is to come as well as limiting the terms of the foregoing analyses while anticipating and gracefully dismissing potential objections—some definitional and terminological clarifications are perhaps in order before we begin. Much of my thinking about the shift from the sovereign control of violence within English common law to the distribution of power among autonomous citizen-subjects in American self-defense doctrine is indebted to theoretical and critical commentary on sovereignty. Sovereignty is an exceptionally complicated notion with

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a very long tradition of commentary and criticism, a complete catalog of which is well beyond the scope of this project. It is worth noting here, however, that I have been influenced by Michel Foucault’s voluminous works on subjectivity, along with his conceptualization of sovereignty from his lectures at the Collège de France, particularly ‘Society Must Be Defended.’9 Although these and other works on the history and nature of sovereignty have provided invaluable guidance to me, I have chosen to avoid the terminology of sovereignty, for several reasons. First, in everyday language the notion of sovereignty quite strongly connotes monarchy; any discussion of personal gun violence and political power in the United States—a nation born in revolt against monarchy—is made awkward by the invocation of this term. While the notions of divisible sovereignty and popular sovereignty prepared ‘the way for a new departure in the organization of power’ and have helped to shape the conceptual and theoretical evolution of the American legal system, the cumbersome language of sovereignty does little to advance a discussion of popular culture’s interactions with these shifts.10 Second, recent contributions to the theorization of sovereignty seem to me to focus too narrowly on the role of the state in either determining how members of its population die or fostering their collective life. Such analyses—such as Georgio Agamben’s insights in Homo Sacer: Sovereign Power and Bare Life and State of Exception—allow very little room for conceptualizing the organization of political power and personal gun violence in the United States, a process that not only controls the limits of subjectivity but also broadens the license by which subjects may justifiably kill each other.11 Third, this book’s discussion of normativity requires a broader focus than the simplistic notion of ‘state power’ writ large—which if looked at solely as an imperative structure of prohibitions buttressed by a state monopoly on violence comes to look in any case rather like monarchical sovereignty. To discuss the resonances between discursive regimes, to look at the disparate normative disciplinary powers that coalesce and operate at these intersections to inform, influence, indeed create subjectivities, our approach to representations of justice and the anxious engagements with self-defense under examination here requires that we look for sovereignty more diffusely, at ‘the interplay or even interpenetration of law, normalization, and discipline.’12 Finally, Gunslinging Justice avoids direct engagement with the language of sovereignty because, as Foucault has pointed out, ‘the theory of sovereignty presupposes the subject.’13 Sovereignty’s dependence on a



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Cartesian notion of autonomous individual subjectivity locatable temporally before the law is untenable and limits the scope of legal, political, and cultural analysis solely to questioning subjects about ‘how, why, and by what right they can agree to being subjugated.’14 Therefore, I hope that by moving away from the unwieldy notion of sovereignty my analysis of the interaction of legal and cultural discourses in the uniquely American context can better analyze ‘how actual relations of subjugation manufacture subjects.’15 Beyond conceptions of sovereignty, my thinking on the intersections between legal realms and other discursive regimes has been profoundly influenced by the trenchant criticisms of the putatively race-neutral American legal system put forth within Critical Race Theory and works such as Patricia Williams’s The Alchemy of Race and Rights (1992).16 Moreover, my analyses of one strand of American popular culture as exerting a supplemental, corrective, progressive influence on the American legal system is indebted to the disciplinary offshoots of Critical Legal Studies, the ‘Law and Literature’ movement, along with its natural offspring, ‘Law and Film’ scholarship. Further still, my discussion of the resonance between and among these discourses has been aided by a sociological perspective on legal rhetoric, exemplified by scholarship such as Robert M. Cover’s Justice Accused: Antislavery and the Judicial Process (1975) that trains its lens on the ‘gap between the law as it is and the law as it ought to be.’17 I have been aided in such analyses by other works that examine the functionality and utility of discursive regimes as normative, disciplinary apparatuses, such as Teresa De Lauretis’s film scholarship Technologies of Gender: Essays on Theory, Film, and Fiction (1987) or Barbara Cruikshank’s sociological analysis, The Will to Empower: Democratic Citizens and Other Subjects (1999). It is within this interdisciplinary realm that I advance my thesis on the Western genre as a ‘technology of citizenship.’ I define Westerns as fictional or cinematic narratives that are typically set west of the Mississippi River between the Civil War and World War I, deeply committed to a pastoral or agrarian mode of living, and heavily reliant on stock characters to populate formulaic plots centered on a conflict between conflicting social, moral, and juridical paradigms, often coded as a dispute between the wilderness and civilization. Although I do consider Justified at the end of this book, my definition of the Western as a genre bounded more than most by its historical setting means that I am less interested here in a variety of ‘post-’westerns that take place in modern settings, films such as Bad Day at Black Rock (1955), Hud (1963), Down in the Valley (2005), HBO’s rather sci-fi-inflected

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revision of Westworld (2016—), or even more contemporaneous films such as The Three Burials of Melquiades Estrada (2005), Brokeback Mountain (2005), There Will be Blood (2007), and No Country for Old Men (2007), than I am in films that continue to employ a historical setting. It is undeniable that the Western’s formulaic reliance on a setting which foregrounds a conflict between the US legal system and another mode of social organization has allowed the ‘frontier’ zone of the genre to shift to some extent geographically from eastern to western settings, and more recently farther south into the border zones between the United States and Mexico. The genre’s unease about modernity has, however, on my reading, been less flexible. As Robert Pippin points out, cinematic Westerns ‘deal with a past form of life that is self-consciously treated as gone, unrecoverable (even if still quite attractive).’18 As a crucial component of what he terms ‘the American imaginary,’ Pippin goes further to point out that many Westerns ‘tell a basic and clearly troubling, complicated story of a traumatic, decisive political transition, the end of one sort of order and self-image and the beginning of another. They represent a kind of myth of American modernization.’19 By narrowing my selection of cultural texts to those that utilize this historical frame, I join Pippin in his reading of the genre as a critique of American modernization. This critique, I am arguing, is most saliently present in a temporal space at some remove from the very modernity in question. I do not deny the importance of analyzing the continuing saliency of the Western’s tropes in narrative fictions of this historical frame—the kind evinced in essay collections such as Neil Campbell’s Post-Westerns: Cinema, Region, West (2013), Andrew Patrick Nelson’s edited collection Contemporary Westerns: Films and Television Since 1990 (2013), or Patrick McGee’s fine study From Shane to Kill Bill: Rethinking the Western (2007).20 Even though by some measures the final chapter of his influential 1973 study on the genre, Westerns: Aspects of a Movie Genre, can be seen to have inaugurated this classificatory catchall of a generic sub-division, the ‘Post-Western,’ I am guided, instead, by Philip French’s invocation of the genre in that same volume as being somehow always about ‘America rewriting and reinterpreting her own past, however honestly or dishonestly it may be done.’21 In an examination of this genre’s impact upon other discursive regimes, in other words, I see greater utility in considering how ‘in fiction about the law’s development in a distant era there is much which contemporary readers may profitably apply to the issues and problems confronting them and their communities.’22



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15

As one of the first cinematic ‘action’ genres, and the early genre most consistently devoted to location shooting, the Western has almost always offered audiences the dual pleasures of scenic frontiers and gripping adventure plots. These two features, the panoramic views and the thrilling action, were, and more often than not continue to be, linked in the Western’s iconographic frontier spaces by a restricted temporal frame that trains our attention on a remote historical era, a territory situated at the margins of Europeanized civilization. This space is crucial to the Western. I argue that whatever else it may be, the Western’s symbolic frontier exists primarily on the outside edge of Europeanized law, a place in which US law is in dispute. As Robert Pippin has noted, this space dedicated to the disputation of the US legal system means that despite the evident and incontrovertible variation within the genre’s long history, certain core questions about legal processes motivate the genre’s development: The great epic Westerns all have some ethical and often straightforward political dimension. The central question usually concerns some dimension of the problem of justice, whether as a question about the relation between justice and vengeance, or the legitimacy of some act of violence, about the relation between violence and the rule of law, or about the conquest and near-extermination of native peoples, or about the injustice of some form of historical memory, or about the psychological costs of the founding of a civil order in a context where it was absent.23

To this I would add that these Western narratives present emotional and rhetorical ‘solutions’ to the conflicting pull between cultural and juridical oppositions most viscerally in the figure of a violent gunfighter. My selection of novels, films, and television programs presented in this book is by no means intended to be exhaustive. Indeed, how could it be? The most conservative estimate, the one cited most often, places the Western genre’s output within televisual media at well over 10,000 texts.24 Even though an unknown number of them from the early period of cinema are unavailable today, and this estimate is nearly thirty years out of date, this is still quite a lot of ground to cover, to say the least. Combine this staggering volume of materials for analysis with the written expressions of the formula, the massive output by prolific authors such as Max Brand, Zane Grey, and Louis L’Amour—–these three alone account for several hundred titles—and the task before the scholar of the Western is more daunting still. Add to this the genre’s enduring draw for production units—Hollywood, network broadcast

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channels, and subscription ‘cable’ studios continue to produce noteworthy films and series. Add further the re-release of earlier titles by both prestige distribution outlets such as Criterion Collections’ DVD reissue of several films in the last decade, or the innumerable B-movies and long-running television shows which constitute the vast majority of the genre’s output in these media that consumers find in bargain bins near checkout lines at such unassuming places as Target and Walmart. The Sisyphean ordeal before the critic wishing to perform even what Tag Gallagher sarcastically termed a ‘judicious survey’ of the genre, it must be admitted, is a practical impossibility.25 I have made every attempt throughout this project to select Western texts from a discourse that not only intersects fruitfully with others within the fabric of America’s gun culture, but also texts which represent trends and concerns within the genre’s larger corpus. Surely other examples could have been marshalled as evidence, just as readily as exceptional titles might be trumpeted as contrary to the texts under close scrutiny here in future analyses. I welcome these additions to the present line of scholarship, just as I would welcome the opportunity to explore in a follow-up project Western films and television movies or series that converse more directly with the social and political moment of a ‘Trump Presidency.’ The Western’s considerable flexibility as a genre led French to refer to it as a ‘great grab-bag, a hungry cuckoo of a genre, a voracious bastard of a form, equally open to visionaries and opportunists.’26 I want to be explicit here that I do not intend my selection of texts—those which I see as engaged with the genre’s thematic core in more varied and challenging ways than routine genre fare does—to deny the variety or flexibility within the genre noted by French and legions of other scholars. The titles analyzed herein have also been selected in part because they foreground conflicting modes of dispute resolution, addressing legal issues in greater depth. Providing a judicious survey of the genre is not— reflecting Gallagher’s above-mentioned observation—the aim of this project. While more work certainly needs to be done to understand and evaluate the place of other, less frequently discussed, films and fiction of the genre, my aim in analyzing the resonances between American legal models and the Western’s representations of gender and gun violence has led me to focus on the more literate films and novels that constitute the critical canon of the Western, if only to achieve new understandings of the appeal of these well-known texts. Another note about the choice of Westerns considered within Gunslinging Justice seems required here, particularly regarding the selection



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17

of American films I discuss. While a variety of directors, producers, and stars from an even greater number of countries have contributed innovative work on the genre, this book focuses solely on American Westerns, for several reasons. First, the formulaic Hollywood Western film promulgates a myth of national origin at the frontier. This myth, going back at least to Frederick Jackson Turner’s formulation in 1893, has long sought to posit American exceptionalism to justify the US experience of Westward expansion.27 Hollywood Westerns work in concert with other nationalist ideologies ‘to ratify the claims of the state to impose its will on individuals within its sphere.’28 Virginia Wright Wexman’s work on the importance of star personae, especially that of John Wayne and his connection with the Western genre, has demonstrated the importance of the Western as ‘a particular kind of discourse on American history and American identity that uses the myth of the frontier to contain a central inconsistency in American nationalist ideology.’29 Echoing this sentiment, Lee Clark Mitchell has noted that ‘a formal tension between the self-conforming and self-contradictory animates Westerns most of all, if only because the genre presumes to represent a past it invents, imposing stereotypes at once incorrect yet all-determining, molding responses to history in ways that actually create that history.’30 Film scholars and cultural critics have long understood the Western as the most American of genres. I read the genre here as participating in the creation and qualification of an ‘imagined community’—to use Benedict Anderson’s term—within which it was, for better or for worse, massively influential.31 Thus, while the formal innovations in, and cynical parody of, the form by the Italian director Sergio Leone have certainly influenced the genre and film history, his work in the Western mode is not as directly involved in reconciling central inconsistencies in American discourses on gender and legal models as are, say, the films of John Ford. My work responds to what the Western has told Americans about themselves. The genre’s participation in the ways we’ve imagined ourselves as subjects of a national community warrants the focus on American productions. ‘Violence’ is a very broad term, so I must delimit how I use it in this study. Although it can also refer to symbolic or discursive events and the effects they have in the world, here violence signifies primarily physical actions. As this book’s title suggests, I focus on representations of gun violence. We will have occasion to discuss fistfights and beatings, but as the genre’s iconic shootouts are its most recognizable feature (except perhaps its historic setting), it is to these shootings that I turn your attention.

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Although we are concerned here with reconciling representations of violence and actual off-screen physical violence, this book charts the political and ideological resonance of such representations, not their putative correspondence to violent actions. In other words, representations of gun violence in the Western genre are examined here for their relationship to the ideologies, rhetorical strategies, and stylistic discourses of hegemonic masculinity and the American legal system, and the effects these discourses have had in the world of power relations. As Richard Slotkin has suggested, this symbolic and mythological importance underwrites violent representations in Hollywood films: ‘What is distinctively “American” is not necessarily the amount or kind of violence that characterizes our history but the mythic significance we have assigned to the kinds of violence we have actually experienced, the forms of symbolic violence we imagine or invent, and the political uses to which we put that symbolism.’32 I do not consider whether such representations directly cause, elicit, or promote violent actions on the part of readers or viewers. In short, this book contemplates what the pleasures of violence in Westerns may tell us about how the genre has imagined American subjectivities, not whether or not viewing a climactic gunfight causes a viewer to shoot someone. To be explicit once again, I am not examining a causal relationship here. Rather, Gunslinging Justice considers the rhetorical complexity within, among, and between discursive regimes that have been crucial to a historical articulation of Anglo masculine gun violence in the United States as an ennobled ‘defense’ of a host of abstract, ineffable, values. The suggestion above about the ‘pleasures of violence’ is not meant to indict the genre as inherently sadistic; rather, it acknowledges the aesthetic contract and commercial materiality of film. Hollywood feature films constitute, above all, a commercial enterprise that specializes in the production, distribution, marketing, and exhibition of entertainments. Viewers watch a film with the expectation of being entertained, of ­eliciting pleasure from the audiovisual design of a narrative fiction. The expectation of pleasure from fictional narrative films has important implications for a study of violent representations within such commercial products. Influenced by Tom Gunning’s work on early cinema as a ‘cinema of attractions,’ much scholarly work has concentrated on representations of violence in film as non-narrative, as spectacle.33 We must recognize, however, that violent representations operate within a narrative framework and are given coherence by the contours of that narrative. Scenes of violence, howsoever aestheticized or explicit,



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are made salient within the contextual details of plot and character development; without this narrative context, violence cannot work as a meaningful representation. As Marsha Kinder has demonstrated about what she terms the ‘narrative orchestration of violent attractions,’ violent representations in narrative fiction film exist in relation to a narrative trajectory: ‘Action sequences function like performative “numbers,” interrupting the linear drive of the plot with their sensational audio and visual spectacle yet simultaneously serving as dramatic climaxes that advance the story toward closure.’34 What Kinder’s work underscores, and other scholarship such as Hillary Neroni’s in The Violent Woman: Femininity, Narrative, and Violence in Contemporary American Cinema (2005) bears out, is that while violent representations may have an immediacy and urgency that sets them apart from such obviously narrative elements as dialogue, violence within narrative fiction films makes sense only within the context of a film’s narrative: Most viewers experience violence on the screen as exciting not only because of the highly stylized techniques, but also because violence often marks moments of tension, and moments of life and death for the main characters. In other words, while violence on screen may arrest the movement of the narrative and may rely on nonverbal expressions, it cannot exist on its own. It must be situated within a narrative framework … narrative provides the background through which the violence acquires its significance and meaning.35

This book’s examination of violence within the Western genre, then, will examine how these films’ narrative trajectories and representational tropes work in concert to legitimate violence as a mode of dispute resolution and an indelible mark of an American identity: Anglo masculinity. As I examine the Western’s articulations of Anglo masculinity, I am interested in marking whiteness explicitly as a racial category. In this sense I would like through my work to join a conversation with other scholars who have analyzed representations of whiteness as central to examinations of racial subjectivities. Richard Dyer, for example, has noted that ‘as long as race is something only applied to non-white peoples, as long as white people are not racially seen and named, they/ we function as a human norm.’36 He goes on to elaborate the ­importance of whiteness as an exclusive claim to human normativity: There is no more powerful position than that of being ‘just’ human. The claim to power is the claim to speak for the commonality of humanity. Raced people can’t do that—they can only speak for their race. But non-raced

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people can, for they do not represent the interests of a race. The point of see the racing of whites is to dislodge them/us from the position of power, with all the inequities, oppression, privileges and sufferings in its train, dislodging them/us by undercutting the authority with which they/we speak and act in and on the world.37

The Western genre’s articulations of whiteness as the normative subjectivity for justifiable gun violence is specifically under examination here, as it has been in James J. Donahue’s work on recent Western novels, Failed Frontiersmen: White Men and Myth in the Post-Sixties American Historical Romance (2015).38 As Gwendolyn Audrey Foster has pointed out, ‘Westerns offered whiteness an opportunity to demonstrate its supposed supremacy through their restrictive binary notions of good and bad. The spectacle of the male white body in westerns allowed a space for nostalgia for what never was, the good-white “settler,” the civilizing, good-white woman, the bonds of community and friendship in whiteness.’39 To examine the dominant resonances between the ostensibly disparate discursive regimes in Gunslinging Justice I must focus primarily on this hegemonic gender/race construct because of how it variously structures and informs each of these discourses, both in isolation and in combination. In focusing most centrally on representations of whiteness and Anglo characters, I do not seek to deny the salience of other racial categorizations within this tradition; certainly a full consideration of the Western genre cannot remain blind to the contributions made by Native American peoples, Mexicans, Hispanic Americans, Asian Americans, or African Americans, and works such as the collection edited by Peter C. Rollins and John E. O’Connor Hollywood’s Indian: The Portrayal of the Native American in Film (1998), LeAnne Howe, Harvey Markowitz, and Denise K. Cummings’s edited collection Seeing Red: Hollywood’s Pixeled Skins (2013), Angela Aleiss’s Making the White Man’s Indian: Native Americans and Hollywood Movies (2005), Janet Walker’s edited collection, Westerns: Films Through History (2001), or Blake Allmendinger’s Ten Most Wanted: The New Western Literature (1998) and Imagining the African American West (2008) ably represent the vital contributions being made.40 Neither do I dismiss the importance of a strand of criticism decidedly committed to debunking the optimism of Turner and the Frontier thesis that has dominated much of the scholarship on the genre. These works in ‘New Western History,’ such as Patricia Nelson Limerick’s The Legacy of Conquest: The Unbroken Past of the American West (1987), which focuses our attention on



Introduction

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the multiplicity of frontiers within the Western tradition under the rubric of a clash of competing civilizations, or Jon Tuska’s vitriolic treatment of the mismatches between film and historical reality, The American West in Film: Critical Approaches to the Western (1988), have shed new light on the problematic ‘universalism’ of a narrative of Anglo ascendancy marching Westward, a ‘universalism’ long thought to undergird much of the Western genre.41 Similarly, work stemming from Gender Studies has, for some time now, emphasized the multiplicity of masculinities extant at any one time that vie for dominance as the hegemonic gender role, a multiplicity that is as evident within the Western genre as it is within the culture at large. Matthew Basso, Laura McCall, and Dee Garceau’s edited collection Across the Great Divide: Cultures of Manhood in the American West (2001) is another important contribution in this regard.42 Readers looking for extended considerations and analyses of the multiplicity of subjectivities implicated within the Western’s vast and varied generic sweep are well advised to begin with the abovementioned texts. Insofar as scholarly monographs depend on a mixture of humility and hubris, I hope that by foregrounding white self-conception as it has been realized diegetically and juridically I have provided workable scaffolding upon which other examinations may profitably build. While I have noted the centrality of Anglo American masculinity to the analyses to come in Gunslinging Justice, it may be important to note here that one racial category other than ‘whiteness’ will be considered in some detail here, mostly in the concluding chapters, specifically representations of African Americans in the Western genre. The choice for this is both critical and personal. Critically, I see the racialized component of American gun laws under pressure mostly keenly when this legal realm’s rhetorical flourishes have failed to accommodate fully an account of black/white history in their narrow conceptions of due process (as in United States v. Cruikshank) or in the utilization and codification of such racially neutral terms as ‘perceived threat’ (as in Trayvon Martin). Personally, the choice has something to do with my work as an African Americanist and something else to do with having lived the vast majority of my adult life in Chicago—one of the more racially segregated cities in the United States—the last several years of which were in a predominately African American neighborhood on the city’s historically embattled South Side. I would not endorse such a simplistic binarism as a critical modality but, simply put, in both my work and personal life ‘race’ is most keenly felt as a black/white issue.

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I imagine that readers living in other regions of the United States, perhaps in the rural South-West bordering Mexico, or instead in an urban metropolis with a much larger Asian American population such as, say, San Francisco, may well have an alternative perspective on these matters. Nonetheless, the combination of these two subjective factors trains my analytics to representations of Anglo and African American racial formations. It is my earnest hope that other critics may utilize and expand on the analyses in Gunslinging Justice to more properly develop these frameworks for a fuller consideration of the roles played by, and presented to, other racial and ethnic subjectivities in the Western genre as well as in and before the American legal system. ‘American self-defense doctrine’ is my terminology for the jurisprudence surrounding the use of self-defense pleas in murder cases and the subsequent broadening of the limits of legally justifiable homicide that has increasingly taken effect under the codification of numerous statelevel ‘Stand Your Ground’ statutes. I have chosen this term for several reasons. First, the distinctive nature of this development in American law involves a rejection of the English common law tradition which imposed a duty to retreat in favor of a broader reading that permits standing one’s ground and killing in self-defense. Further, I have chosen ‘self-defense’ over ‘justifiable homicide’ because a series of closely related cases in the nineteenth and early twentieth centuries has generated a coherent set of rulings and judicial opinions under the rubric of self-defense.43 Furthermore, although these cases and a set of cases from the late twentieth and early twenty-first centuries do in fact expand the limits of mortal violence, sanctioning new types of violence and a wider range of circumstances under which killing is legally justifiable, a full discussion of ‘justifiable homicide’—which must necessarily consider capital punishment, war, and perhaps even euthanasia—is well beyond the scope of this project. So while I occasionally discuss the American expansion of the category of legally justifiable homicide, which parallels the transformation embodied in American self-defense doctrine, I refer to the juridical precedent more narrowly as ‘American self-defense doctrine.’ I have avoided utilizing ‘Stand Your Ground,’ despite its contemporary purchase in legislative initiatives and media coverage of the sensational cases of George Zimmerman and Michael Dunn, because this more aggressive stance is merely the extreme position within a range of attitudes, laws, and judicial precedent that has developed in the United States over centuries. ‘American self-defense doctrine’ better encapsulates the historical



Introduction

23

and theoretical breadth of this issue. Finally, self-defense is not only more readily recognizable in common speech; it is also important to the American transition in gun possession which borrowed the British duty to defend the realm and transformed it into a right to defend oneself. The question for cultural criticism is not whether broadening access to guns and expanding the legal space for private gun violence will result in more or less crime. Rather, the question here ought to be about how the power effects and discursive verities produced by legal and cultural regimes code private gun violence as justifiable. Put another way, like the disparate notes that combine to make a chord according to music theory, these legal and cultural regimes resonate together, and when they do they form a note that rings rather differently from that made by either of them in isolation. The associated evolution of the distinctive American self-defense doctrine and the right to gun possession has long been interwoven with—serving as the woof to the warp of—the Western’s articulation of gunslinging heroism. As American legal paradigms imagine the ideal citizen to be an armed Anglo man willing to resolve disputes with a gun, so too has the Western long championed a gunslinging masculine heroism. Despite the genre’s perceived antipathy to ‘the law,’ in matters concerning gun violence the two seem to agree far more than they disagree. As I hope to make clear in the following pages, these homologous discourses underwrite not only our social understandings of justifiable private gun violence but also our conceptions of normative masculinity. Writing about the rhetorical efficacy of legal language that attempts to hold legal interpretation apart from other practices by effacing the normative values underwriting legal interpretations, Stanley Fish has suggested that law affirms values that are already evident: ‘To the extent that law is compelling, it is compelling in relation to the very principles and biases it supposedly neutralizes; the reasons for which we do something or refrain from doing something are reasons only by virtue of the preconceptions and predispositions we already have.’44 By now it should be obvious that one of these ‘already evident’ values that I see operating in and between the Western genre and American gun rights embodies a conception of Anglo ascendancy. Again it is important to be explicit here: I aim to illustrate in Gunslinging Justice not ‘why’ but rather ‘how’ Anglo American masculinity so often serves as the linchpin around which these discursive regimes revolve. Integral to the anti-formalist or anti-foundationalist critique of legal systems put forward by Fish and others is the attempt to cut through these effacements, to demonstrate

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the historical and contextual interdependence of putatively distinct fields. The Western genre has, as yet, received little attention within this tradition. Neither has it received due consideration within the much-­ expanded ‘Law and Literature’ or ‘Law and Film’ movements, although the edited collection The Philosophy of the Western (2010) by Jennifer L. McMahon and B. Steve Csaki is a welcome addition.45 Even the otherwise highly illuminating collection recently edited by Saul Levmore and Martha C. Nussbaum, American Guy: Masculinity in American Law and Literature (2014)—save for an essay entitled ‘Struggles with manhood in Angle of Repose’ by A. Howard Matz on Wallace Stegner’s novel—turns its attention for the most part away from the Western genre and looks instead to other matters and examples in considering American masculinities.46 This reticence to discuss the Western genre more fully, or the genre’s cinematic tradition at all, is especially ironic given how the book’s cover rather pointedly relies on the genre’s imagery, featuring as it does a gracefully sunset-silhouetted cowboy, pictured from behind, alone, looking over a vast and presumably unpopulated expanse of horizon. Gunslinging Justice is aimed, in part, as a corrective to such omissions. What attention has been paid to representations of the American legal system and gun violence in American popular culture has long been dominated by two influential theoretical traditions that have obstructed studies such as mine: Lacanian notions of ‘the law’ and the phallic symbolism of guns. Productive as they have been in their own right, these ahistorical reifications mask the contextual evolution of interrelated discursive regimes and obscure the richness of historical changes that distinguish the American cultural and legal systems. More to the point, the richness of the genre’s negotiation of gun violence has been masked by a refusal to see the specificity of gunplay within the Western as more than a phallic performance. There is a famous (and likely apocryphal) story about Freud’s once joking (some say to students of his who observed the omnipresence of his cigars) that a cigar is sometimes just a cigar. In the Western genre, I argue, the gun is always more than ‘just’ a gun; it is not, as Shane (1953) would have it, ‘a tool like any other.’ As a tool of death, the gun is a political instrument, and it means something in our culture that our most persistently popular genre has long fixated on the politics of when, and how, one can be justified in using this tool. My work has been influenced by the psychoanalytic criticism that has long dominated film studies and is clearly indebted to anti-foundationalist legal scholarship that attempts to move beyond the



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putatively universal concept of ‘the law’ as an unchanging abstract value. Occupying a critical space that lies beyond ahistorical psychoanalytical conceptions, I approach the Western genre as a lens through which to historicize the interwoven evolution of distinctively American legal paradigms and iconic representations of climactic, decisive gun violence. In an attempt to ‘make strange’ the seemingly indelible link between Anglo American male subjectivities and gun violence, Gunslinging Justice is grounded by analyses of the interconnected history of these legal and cultural traditions. Notes  1 Gerald Graff and Kathy Birkenstein, They Say/I Say: The Moves that Matter in Academic Writing (New York: W. W. Norton, 2006).  2 Toni Morrison, Playing in the Dark: Whiteness and the Literary Imagination (New York: Vintage Books, 1993), p. 3.  3 Orit Kamir, ‘Cinematic judgement and jurisprudence: A woman’s memory, recovery, and justice in a post-traumatic society (a study of Polanski’s Death and the Maiden),’ in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds), Law on the Screen (Stanford, CA: Stanford University Press, 2005), pp. 27–81; p. 28.  4 Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, ‘On law and film: Broadening the focus,’ in Sarat, Douglas, and Umphrey (eds), Law on the Screen, pp. 1–26; p. 2.  5 District of Columbia v. Heller, 554 U.S. 570 (2008).  6 Ibid., p. 1.  7 James Oliphant and Jeff Coen, ‘Daley vows to fight for Chicago’s gun ban,’ Chicago Tribune (June 27, 2008), p. C1.  8 Michel Foucault, The History of Sexuality: Volume One: An Introduction (New York: Vintage Books, 1990 (1978)), pp. 140–3.  9 Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975–76, ed. Mauro Bertani and Alessandro Fontana, trans. David Macey (New York: Picador, 2003). 10 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992 (1967)), p. 198. 11 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998) and State of Exception, trans. Kevin Attell (Chicago, IL: University of Chicago Press, 2005). 12 Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Governance (Boulder, CO: Pluto Press, 1994), p. 67. 13 Foucault, ‘Society Must Be Defended,’ p. 44. 14 Ibid., p. 45.

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15 Ibid. Emphasis added. 16 Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, MA: Harvard University Press, 1991). 17 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1975), p. 29. 18 Robert B. Pippin, Hollywood Westerns and American Myth: The Importance of Howard Hawks and John Ford for Political Philosophy (New Haven, CT: Yale University Press, 2010), p. 62. 19 Ibid. 20 Neil Campbell, Post-Westerns: Cinema, Region, West (Lincoln: University of Nebraska Press, 2013); Andrew Patrick Nelson (ed.), Contemporary Westerns: Films and Television Since 1990 (Lanham, MD: Scarecrow Press, 2013); Patrick McGee, From Shane to Kill Bill: Rethinking the Western (Malden, MA: Blackwell, 2007). 21 Philip French, Westerns: Aspects of a Movie Genre (London: Secker & Warburg, in association with the British Film Institute, 1973), p. 24. 22 Lawrence Friedman (ed.), Law and the Modern Condition: Literary and Historical Perspectives (Clark, NJ: Talbot Publishing, 2013), p. xi. Emphasis added. 23 Robert B. Pippin, ‘Cinematic irony: The strange case of Nicholas Ray’s Johnny Guitar,’ nonsite.org (11 Sept. 2014). Available at http://nonsite.org/ feature/cinematic-irony-the-strange-case-of-nicholas-rays-johnny-guitar. Unpaginated. Accessed July 13, 2017. 24 Edward Buscombe, ‘Preface,’ in Buscombe (ed.), The BFI Companion to the Western (New York: Atheneum, 1988), p. 13. 25 Tag Gallagher, ‘Shootout at the genre corral: Problems in the “evolution” of the Western,’ in Barry Keith Grant (ed.), Film Genre Reader III (Austin: University of Texas Press, 2003), pp. 262–76; p. 263. 26 French, Westerns, p. 24. 27 Frederick Jackson Turner, ‘The significance of the frontier in American history’ (1893). Available at http://xroads.virginia.edu/~HYPER/ TURNER. Accessed Aug. 8, 2017. 28 Virginia Wright Wexman, Creating the Couple: Love, Marriage, and Hollywood Performance (Princeton, NJ: Princeton University Press, 1993), p. 71. 29 Ibid. 30 Lee Clark Mitchell, Westerns: Making the Man in Fiction and Film (Chicago, IL: University of Chicago Press, 1996), p. 21. 31 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (New York: Verso, 1983). 32 Richard Slotkin, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (New York: Macmillan, 1992), p. 13. 33 Tom Gunning, ‘The cinema of attraction: Early film, its spectator, and the avant-garde,’ in Robert Stam and Toby Miller (eds), Film and Theory: An Introduction (Malden, MA: Blackwell, 2000), pp. 229–35; p. 230.



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34 Marsha Kinder, ‘Violence American style: The narrative orchestration of violent attractions,’ in David J. Slocum (ed.), Violence and American Cinema (New York: Routledge, 2001), pp. 63–100; p. 68. Emphasis added. 35 Hillary Neroni, The Violent Woman: Femininity, Narrative, and Violence in Contemporary American Cinema (Albany: State University of New York Press, 2005), p. 5. 36 Richard Dyer, White: Essays on Race and Culture (New York: Routledge, 1997), p. 1. 37 Ibid., pp. 1–2. 38 James J. Donahue, Failed Frontiersman: White Men and Myth in the Post-Sixties American Historical Romance (Charlottesville: University of Virginia Press, 2015). 39 Gwendolyn Audrey Foster, Performing Whiteness: Postmodern Re/Constructions in the Cinema (Albany: State University of New York Press, 2003), p. 138. 40 Peter C. Rollins and John E. O’Connor (eds), Hollywood’s Indian: The Portrayal of the Native American in Film (Lexington: University Press of Kentucky, 1998); LeAnne Howe, Harvey Markowitz, and Denise K. Cummings (eds), Seeing Red: Hollywood’s Pixeled Skins (East Lansing: Michigan State University Press, 2013); Angela Aleiss, Making the White Man’s Indian: Native Americans and Hollywood Movies (Westport, CT: Praeger, 2005); Janet Walker (ed.), Westerns: Films Through History (New York: Routledge, 2001); Blake Allmendinger, Ten Most Wanted: The New Western Literature (New York: Routledge, 1998) and Imagining the African American West (Lincoln: University of Nebraska Press, 2008). 41 Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: W. W. Norton, 1987); Jon Tuska, The American West in Film: Critical Approaches to the Western (Westport, CT: Greenwood Press, 1985). 42 Matthew Basso, Laura McCall, and Dee Garceau (eds), Across the Great Divide: Cultures of Manhood in the American West (New York: Routledge, 2001). 43 David B. Kopel, ‘The Self-Defense Cases: How the United States Supreme Court confronted a hanging judge in the nineteenth century and taught some lessons for jurisprudence in the twenty-first,’ American Journal of Criminal Law, 27:3 (Summer 2000), pp. 293–327. 44 Stanley Fish, ‘Force,’ in Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, NC: Duke University Press, 1989), pp. 503–24; p. 519. 45 Jennifer L. McMahon and B. Steve Csaki (eds), The Philosophy of the Western (Lexington, University of Kentucky Press, 2010). 46 Saul Levmore and Martha C. Nussbaum, American Guy: Masculinity in American Law and Literature (New York: Oxford University Press, 2014); A. Howard Matz, ‘Struggles with manhood in Angle of Repose,’ in Levmore and Nussbaum, American Guy.

1

‘A kind of wild justice’: revenge and constitutional commentary in the Western John Huston’s 1972 film, The Life and Times of Judge Roy Bean, tells the story of an outlaw who sets himself up as a judge—the judge—in an ungoverned territory of western Texas. Markedly irreverent, the film is explicitly dedicated to raising myth over history, an agenda made clear by opening titles that declare, ‘Maybe this isn’t the way it was … it’s the way it should have been.’ ‘Judge’ Roy Bean (Paul Newman) administers a ruthless and unchecked style of ‘justice’ and law that consists largely of extorting fines and summarily hanging offenders for the most trivial of infractions. John Milius’s screenplay for the film is not the first dramatization of Bean’s legendary story, for Phantly Roy Bean, Jr was in fact a remarkable historical figure who presided as justice of the peace in Vale Verde County, Texas during much of the 1890s.1 Neither is the film unique in its derisive portrayal of Bean’s self-interested proclamation to be the ‘only law west of the Pecos,’ which provides the barest of justifications for his avarice and aggression. Several decades earlier, Walter Brennan portrayed a similarly scheming Bean to great comic effect in William Wyler’s 1940 film The Westerner. What stands out in Milius’s, Huston’s, and Newman’s interpretations of Bean, however, is the redemptive force of the vengeance that Bean exacts. This vengeful version of Bean’s law is more complicated than the knowing satire or revisionist ethos that marked such contemporaneous Westerns as Blazing Saddles (1974) and Pat Garrett and Billy the Kid (1973), for Bean’s revenge is represented in several ways. On the one hand, Bean’s wrath is first depicted here as a foundational act of violence which grounds ‘the law.’2 Accosted by local toughs upon his arrival in the whimsically named town of Vinegaroon, Bean is robbed, lynched,



Revenge and constitutional commentary 29

1  Paul Newman as Judge Roy Bean in The Life and Times of Judge Roy Bean, 1972

and left for dead, only to revive and return, killing nearly a dozen people so that he may then enshrine himself as a figure cloaked in the thinnest rhetoric of law to keep order in the territory (see Figure 1). On the other hand, Bean’s rage is depicted as a necessary supplement to legal order; his extortion and intimidation tactics are shown to spur development, as the rugged and barren landscape is transformed in montage into an ostensibly ordered municipality. The railroad then brings mediated legal administration in the form of a lawyer with the Dickensian name of Gass (Roddy McDowall), who not only supplants Bean as mayor but also discovers oil, a discovery that transforms the area into a bustling metropolis replete with land and commodities financing, cars (again, the film is set in the 1890s), and gang warfare. Bean’s response to this ‘development’ is the most keenly felt, most affectively forceful, and most interesting representation of his rage in the film. As it happens, Bean’s saloon sits atop an oil reserve and Gass’s henchmen attempt to wrest the property away from him. When they descend on the saloon Gass’s hired guns ask Bean to identify himself. He passionately declares that he is ‘Justice, you sons of bitches!,’ and proceeds to lead an attack on Gass that literally destroys Vinegaroon. An unapologetically populist and nostalgic vengeance erupts in the film’s penultimate scene: horses triumph over cars, grizzled cowboys in rugged clothes wielding pistols defeat slickly uniformed mercenaries armed with submachine guns, and a lone Bean on horseback rides over Gass before

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the two are engulfed in flames and the exploding oil wells come crashing down as fire overwhelms the town. As the flames fade out we are shown a few dilapidated buildings and an almost deserted settlement, the voiceover narrator informing viewers that ‘the wells dried up, the desert took back what was once its own.’ Here, perhaps, lies the real force of the film’s opening historical revisionism: Bean as the incarnation of ‘Justice,’ destroying the oil business, triumphing over technological progress, vaulting the mediations of legal procedure, consigning the corruption of the moneyed Eastern interests to the barren desert, the film suggests, is the way it ‘should have been.’ What is most interesting about Bean’s apocalyptic rage here is the empathetic structure of feeling created around his acts of revenge. Bean’s initial killings are easily justified because he was attacked and robbed. Moreover, Bean’s admittedly self-interested administration of ‘law’ in the town of Vinegaroon does indeed provide a sense of stability and order, however perverse this order may appear to the modern eye. Further still, Bean’s vision of developing the land for emergent commerce is certainly concomitant with a progressive vision of American capitalism, even if it is short-sighted about the coming transformations wrought by industry and financial speculation. Finally, by pitting Bean against the Eastern oilman, the film aligns him with a longstanding populist and parochial tradition in the genre.3 In summary, Bean’s rages that viewers witness over the course of the film are presented in the context of a series of rhetorical flourishes and emotional appeals to core civic values. Weighed against these cherished values, his circumvention, manipulation, and defiance of the technicalities of ‘the law’ are not nearly evil enough to make him completely villainous. The racist and sexist Bean still emerges as an erstwhile ‘hero’ in this otherwise quite conservative film. It would be tempting to say that Bean’s climactic triumph, a portrayal endemic—perhaps even systematic—within the Western genre, is, due to its populist rhetoric, satisfactory despite the violence. In fact, however, the genre’s notion of heroism depends on this seemingly wild violence. Put another way, Bean and the vast majority of Western gunslingers are heroes precisely because of their vengeful tendencies. In The Culture of Vengeance and the Fate of American Justice Terry K. Aladjem has suggested that ‘when Americans say they want justice, they want something angry and punitive.’4 On his view, American society is caught between two images of justice, a legal system focused on procedural safeguards and processes that purport to remove personal biases—especially, but not limited to, vengeful feelings—and a popular culture that for over a



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century has insisted that a satisfactory sense of justice is best delivered via a gun. Although the Western genre is largely missing from Aladjem’s account of American popular culture, his notion of American popular culture as ‘angry’ and ‘punitive’ is perfectly encapsulated in the figure of Judge Roy Bean outlined above. What makes this gunslinger’s ‘justice’ so satisfactory is precisely that it is personal, swift, precise, and conclusive. The thrill of Western gun violence lies in its decisive resolution of seemingly irresolvable conflicts. This focus on the depiction of Bean as a sympathetic avenger is meant to train our attention on this important aspect of the genre, namely, its status as a drama of revenge. Despite dismal box-office returns—due in no small part certainly to the film’s blatant sexism—The Life and Times of Judge Roy Bean is a typical example, for revenge is often an integral motivation for heroic violence within the Western. The film’s portrayal of Bean’s manipulation of the rhetoric of ‘the law’ is part and parcel of the genre’s imagination of justifiable violence and the idea of the Western’s gunslinging hero as a critique of the American legal system. The Western genre, I argue, represents a critical juncture between American legal and cultural ideologies. Although the codified and mediated American legal system may well, as Stanley Fish has suggested, wish to have a formal existence, it nonetheless shares many of the rhetorical strategies of our popular cultural traditions. The argument here is not mimetic but instead an attempt to unravel the complex interrelationship between ostensibly distinctive discursive fields which underwrite our social understanding of justice. The seeming disparity between revenge and justice is an ancient one. Both revenge and justice address an initial injury and mete out subsequent punishment, but the distinction between the two lies in the method. In short, ‘revenge’ has traditionally been viewed as excessive, passionate, unrestrained, and an incitement to more and often escalating violence; ‘justice,’ in opposition to revenge, has been viewed as equitable, dispassionate, restrained, a more circumscribed exercise of punishment. Revenge has thus long had a negative connotation, perhaps the best example being the biblical injunction of an ‘eye for an eye’ found in Exodus and Leviticus.5 These infamous passages, with their extensive listing of bodily punishments, lend the pejorative connotation to the phrase ‘Old Testament vengeance,’ and have long been thought to promote a system of blood revenge crueler and less restrained than a modern legal system. Although commonly thought of as a more ruthless sort of equity than a modern system of punishment that declines to sever,

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dismember, and distribute bodies as recompense, it is important to note that the calculus embodied in the lex talionis actually sought to limit excessive punishment. In other words, the injured party was advised to take only an eye, only a tooth, and so on, depending on the crime.6 Despite the delimiting intent of the lex talionis, the disparity between revenge and justice is enshrined in Francis Bacon’s notion of revenge as a kind of ‘wild justice’ which ‘putteth the law out of office.’7 Bacon’s famous equation deserves further consideration here, for he does not strictly oppose revenge to justice. In his formulation the difference is one of degree and not of kind—for revenge is but a ‘wild’ sort of justice. The main threat imposed by revenge, for Bacon, is not that justice would fail to be served, but rather that revenge is unrestrained and therefore anathema to the rational calculus of ‘the law.’ This is further clarified when he notes that ‘the most tolerable sort of revenge is for those wrongs which there is no law to remedy.’8 Where there exists a legal system to remedy a wrong, however, revenge is seen as abhorrent chiefly because it is direct and personal, qualities that a mediated and disinterested legal system seeks to cull from the administration of punishment. This sense of the personal and immediate nature of revenge as threatening to a legal order is by no means isolated to Bacon. As Susan Jacoby notes in her wide-ranging study of revenge themes in literature and culture, ‘One measure of a civilization’s complexity is the distance between aggrieved individuals and the administration of revenge.’9 This distance is precisely the mediation and procedural complexity enshrined in modern, European-style legal systems that seek to remove punishment from the aggrieved party in the hope of thereby establishing a more objective and proportional system for redressing injuries. While the distance between injury and punishment may indeed be a measure of a civilization’s complexity, this distance has also long been felt as deracinating justice, bleeding some of the satisfaction that aggrieved parties take from it. As the legal scholar William Ian Miller has pointed out, ‘justice, if it means anything, means having people feel the sense of it. The ultimate legitimacy of institutions charged with administering justice depends on this sense.’10 Miller goes on to suggest that whenever justice is not ‘felt’ in the administration of punishment, there is ‘demoralization, despair, [and] cynicism,’ but he neglects to mention a great flourishing of cultural entertainments.11 Numerous works explore this distance between legal administration and the public’s sense of what constitutes ‘justice.’ Within the American



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context, accounts which seek to redress the current justice system to accommodate personal retribution include Charles K. B Barton’s Getting Even: Revenge as a Form of Justice (1999) and Peter A. French’s The Virtues of Vengeance (2001).12 Aladjem’s The Culture of Vengeance represents a more measured study, as his conceptualization of the American justice system’s inability to account for what he terms ‘the rage in grief’ leads him to explore the contradictions inherent in a ‘system of justice that denies vengeance, and a culture that is utterly obsessed with it.’13 In other words, the distance between the administration of punishment and a felt system of justice is also inherently productive, a generative space within which mass entertainments negotiate the social tension constituted by this distance. If people feel that justice is not being served in their legal system this feeling has often been accommodated in their cultural entertainments. Reconciling, howsoever imaginatively or fantastically, this space, this gap between ‘the law as it is and law as it should be,’ is one of the functions of popular culture.14 One such cultural tradition that has been productively read as indicating the anxieties expressed in a contemporaneous legal system is Early Modern theatre. Numerous commentators have identified ways in which Elizabethan and Jacobean revenge drama bears witness to anxieties over the shifting power relations caused by the emergent market economy, religious reformations, and the re-stratification of gender roles and changes in the English legal system that are concomitant with these paradigm changes.15 These studies are united not only in exploring legal systems and contemporaneous cultural texts, but also by a sense that revenge dramas are compelling because they explore the contradictions and tensions within a legal paradigm. Eleanor Prosser focuses on Hamlet, for instance—rather than the many villainous revengers whose vengeance is prompted not by injustice but rather by ambition, greed, or mere sadism—because the play revolves around a ‘basically virtuous character who sustains (or thinks he sustains) a serious injury but has (or thinks he has) no recourse to law.’16 The act of revenge here is not an excessive, unrestrained viciousness, but an attempt to find redress or recompense when an existing system of punishment fails to do so. In her introduction to a collection of Early Modern revenge tragedies, Katharine Eisaman Maus is even more explicit in her definition of revenge tragedy as a genre that critiques existing legal systems: ‘Revenge tragedies feature someone who prosecutes a crime in a private capacity, taking matters into his own hands because the institutions by which criminals are made to pay for their offenses are either systematically defective

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or unable to cope with some particularly difficult situation.’17 Maus’s language of ‘prosecution’ and institutions of punishment bespeaks an understanding of the drama of revenge tragedy as a critique of existing legal systems. In this sense, revenge in Early Modern drama is read by Prosser and Maus not so much as running against law, but rather as supplementing it. Revenge seeks to remedy a deficient system. It is in this sense that the revenger’s plight is compelling to an audience: ‘In order for his predicament to interest an audience, however, it must somehow pertain to the audience’s own concerns. The revenger’s problem must be shared, albeit in an attenuated form, by the spectators to his tragedy; or, to put it the other way around, his dilemma must condense some more widely experienced anxiety into an artistically persuasive form.’18 Revenge narratives work in the world as critiques of an existing legal system, supplementing personal punishment for an injury as an expression of what must be prescinded from a disinterested legal system if it is to function as an objective organization of punishments. This notion of an immediate, personal punishment enacted in revenge as a supplement to the mediated, procedural application of a modern legal apparatus is integral to readings of revenge themes that take us beyond analyses of Elizabethan and Jacobean drama. In his work on Roman Polanski’s Death and the Maiden (1994), for example, Orit Kamir notes the interrelationship between film and law as pivotal, and vitally interrelated, discourses on justice: Most significant and intriguing of the parallel functions are the many subtle ways each field offers its readers or viewers a seductive invitation to take on a sociocultural persona and become part of an imagined (judging) community, sharing the worldview constituted by the law or the film … Judicial decisions and other legal texts are inherently imbued with judgement and concerned with justice; their construction of subjects and communities are, therefore, inseparable from judgement and the search for justice. Less evidently – but no less significantly – the same can be said of many films. Films, much like judicial decisions and legislative rhetoric can – and do – constitute communities (of viewers) that are often engaged in judgement, legal-like reasoning, the pursuit of justice, and self-creation through judgement and justice.19

William Ian Miller’s exploration of revenge themes in modern film claims a similar supplementary function for popular cultural narratives of extralegal violence by showing that the avenging hero is subject to a series of normative constraints that share the underlying principles of the US legal system. Miller extends his comments on modern film



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to read the Western, like other revenge narratives, as ‘a criticism of state-delivered justice.’20 Although the avenging hero is less constrained by administrative, procedural issues of the law, his or her actions are still very much restricted in terms of when, how, and against whom the avenging hero may enact revenge: ‘What the avenger rejects are largely procedural matters; his cause must still satisfy some sense of substantive justice. If he fails in that, then he is not an avenger. He becomes the villain.’21 Miller and Kamir share Maus’s conception that a revenge narrative’s critique of contemporary legal systems is sustainable to the degree that the viewer’s sympathy must lie with the hero. We must feel—the narratives are constructed in such a way to guarantee this structure of feeling—that the hero’s actions and motivations are structured in accordance with the norms of justice and right to which we already adhere; ‘In other words, there are still rules, very strict ones. The wild justice of revenge, for all its so-called wildness, is still recognizably justice.’22 Other critics have noted the prevalence of revenge themes within the Western genre. In their studies of Early Modern revenge drama, both Prosser and Maus note important parallels in the typical revenge plots of modern Westerns.23 More centrally, Jim Kitses and David Lusted have both posited revenge as integral to the ‘Ranown cycle’ of films directed by Budd Boetticher and starring Randolph Scott.24 Compelling as these analyses are, they are limited not only in their auteurist interpretation of the films, but also insofar as they read Westerns featuring revenge as but a small subset of the larger genre. Will Wright’s structuralist reading of the genre, Sixguns and Society: A Structural Study of the Western, also delimits revenge as a variety of the Western type, which he terms the ‘vengeance variation.’ As the term indicates, Wright views vengeance as a variation on the ‘classical plot’; the chief variation for Wright is that the hero of the classical plot employs violence to establish a modern social order, while the vengeance hero, much like the revengers of Early Modern drama, utilizes violence in punishing transgressions that the legal apparatus of an established society cannot (see Figure 2). For Wright, the structuring similarity between any number of films from quite distinct eras—such as Stagecoach (1939), The Naked Spur (1953), and Hang ’Em High (1968)—is that already established ‘institutions of justice are inadequate to correct the wrong or punish the guilty … the hero must do it himself.’25 Wright’s depiction of the representative villains within the two plots—the classical and the vengeance variation—makes this distinction especially clear:

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2  Clint Eastwood as Jed Cooper exacting revenge in Hang ’Em High, 1968

‘The villains [in the vengeance variation] are not threats to the very survival of society as they were in the classical plot, but they are able to harm individual members of society with impunity as far as the legal institutions of society are concerned.’26 Simon Petch has argued that ‘the western film took generic shape in the mid-twentieth century as a reworking of the motifs of revenge tragedy. These motifs center on the ethical and moral consequences of revenge. Typically, the western plot turns on the need to remedy injustice, which may involve the hero transgressing the law by taking it into his own hands.’27 For Petch, Western films ultimately affirmed the legal institutions the hero’s vengeance worked to supplement. Although the heroic cowboy figure tended to work outside the law, he enacted revenge consistently with a public sense of right and wrong, applying a style of justice, ‘in other words, [that] accepts much of the substance of the law.’28 These stimulating analyses have provided fertile ground for further explorations of the genre. However, the shared delegation of revenge to a subset, variation, or category of Western cannot account for the ways in which Westerns have functioned to underwrite our social understanding of justice in massively influential formulaic entertainments that depend on the portrayal of heroic, extralegal violence irrespective of any explicit appeal to personal revenge. In other words, even in Westerns in which the plot does not explicitly turn on revenge, the texts more often than not still champion gun violence as a preferable mode



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of dispute resolution. Furthermore, the focus on plot and narrative in these accounts, especially Wright’s, fails to acknowledge forthrightly the iconography and stylistic features unique to the genre’s negotiation of legal institutions and the particularity of its representation of revenge or justice. If revenge, as William Miller has it, ‘is a style of doing justice,’ then an interrogation of the Western’s style of revenge or justice must be attuned to these tropes if it is to more fully investigate the genre’s relationship to American-style law.29 A fuller inquiry into the style of the gunslinger’s vengeance, in fact, suggests a rather different relationship between cultural products and legal apparatuses than the one suggested by other critics. Prosser, Maus, Wright, and Miller are united in regarding the action of the avenging or revenging hero as supplemental; put another way, on their readings the violence is heroic, justified, by virtue of core values shared with an audience. In short, the ends justify the means. Accordingly, the revenger is almost necessarily a reactionary figure. He sidesteps procedural hurdles because they stand in the way of what was once an ostensibly clearer landscape of equity or justice. I argue, however, that the Western gunslinger is instead a progressive figure, an emblem of the cultural work done in the world by popular culture and of the interrelated evolution of cultural and legal regimes. Simply put, the gunslingers’ means are the ends. The stylistic imperatives of the Western gunslinger’s delivery of justice enact a complex array of normative constraints. I read the cultural work of the Western genre as an emotional or rhetorical thinking-through, an anxious reification, of a set of specific interconnected conflicts and inconsistencies in American legal paradigms related to justifiable homicide and gun possession. John G. Cawelti’s analyses of the iconic importance of the gun, the symbol of ‘Western justice’ par excellence, captures the critical ­significance of the Western hero’s gun violence: The cowboy usually meets his [adversary] at a distance and goes through the complex and rigid ritual of the ‘draw’ before finally consummating the fatal deed. The most important implication of this killing procedure seems to be the qualities of reluctance, control and elegance that it associates with the hero … The six-gun is a weapon that enables the hero to show objectivity and detachment while yet engaging in individual combat. This controlled and aesthetic mode of killing is particularly important as the supreme mark of differentiation between the hero and the savage … thus, the hero’s special skill at gun fighting not only symbolizes his masculine potency, but also indicates that his violence is disciplined and pure.30

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As Cawelti points out, the Western’s representation of gun violence portrays an exercise in control: a complex ritual performed at a distance; an elegant procedure for killing that exhibits reluctance, objectivity, and detachment; an aesthetic mode of violence that is, above all, disciplined. Each of these terms in Cawelti’s analysis enshrines a value that is fundamental to the differentiation between the wildness of revenge and the detached justice of law. American Westerns and the American legal system resonate together in expressing the normative ‘truths’ that underwrite representations of justifiable gun violence. Much work has been done on the relationship between cultural texts and legal systems, much of it cohering loosely under the rubric of the ‘Law and Literature,’ or ‘Law and Film’ movements.31 The analyses forwarded by these scholars have been helpful in illuminating the shared concerns and rhetorical effects of legal and cultural discourses. Much of the ‘Law and Literature’ scholarship is limited, however, by a reification of legal systems as ‘the law,’ an abstraction which tends both to gloss over important historical contexts in the production of legal and cultural discourses and also to prioritize ‘the law’ as primary, thereby reading cultural texts as mere reflections of a universalized, transhistorical legal structure. Definitions of ‘the law’ often reveal more about the normative frameworks from which they issue than about the designation in question. The law is neither simply a check on the excessive brutality of natural man—as in the Hobbesian conception32—nor is the law, as in Holmes’s pragmatic estimation,33 a purely procedural matter. These oppositions between law and brutality, or justice and procedural niceties, reflect a host of enlightenment values and say more about the ideological commitments of a Hobbes or a Holmes than they do about the social function of a system of laws. As the anti-foundationalist critique of legal systems has made clear, law may be better described as a set of contextually specific regimes of knowledge, what the sociologist Clifford Geertz has called ‘a distinctive manner of imagining the real.’34 Legal systems constitute a set of locally bound and determined rules, practices, norms, and institutions that contribute to the social order and maintenance of the status quo. The tendency to read law and literature, or law and film, as discrete fields, although in part attributable to the narrow disciplinary frameworks of legal and humanities scholarship, masks the interdependent means by which these regimes of power produce truth. As Stanley Fish has repeatedly argued concerning law and literature as distinctive but



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closely related interpretive practices, the discourses of legal regimes exist in ‘networks of affiliation and reciprocity’ with other interpretive disciplines: ‘A position taken in one corner of the institutional world is authorized by and authorizes in its turn positions of a similar kind taken elsewhere.’35 Legal systems actively shape the limits of a social order, constraining and constructing the worldview of a society while policing its organizing principles. Inspired by scholarship that crosses traditional disciplinary boundaries between legal studies, sociology, anthropology, and literary criticism, my work examines legal practices as contingent, contextually bound paradigms. Rather than uncovering what cultural texts may be able to teach ‘the law,’ I seek a historically nuanced account of the constitutive relationship between legal and cultural discourses, one that forgoes the generalization of ‘the law’ and seeks instead a genealogical analysis of dynamic legal and cultural apparatuses and the subjectivities they imagine and implicate. Like Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, and many other scholars, I look to televisual narrative fictions to uncover the ‘“might-have-beens” that have shaped our worlds and the “might-bes” against which those worlds can be judged and toward which they might be pointed.’36 I seek, in short, to unravel the warp of law from the woof of culture to reveal what Foucault would have termed their ‘coincident emergence’ as well as a genealogical account of their numerous resonances and occasional divergence. The plots of many Westerns explicitly revolve around revenge, often worrying quite anxiously about how to define the parameters of justifiable homicide and murder when one is forced, as it were, to act outside ‘the law.’ Narratives limning the legendary frontier lawman, Wyatt Earp, seem particularly prone to this plotline, in part because of this historical figure’s own elusive relationship with legal gun violence as a marshal-turned-family feud avenger. Stuart N. Lake’s fictionalized biography, Wyatt Earp: Frontier Marshal (1994 (1931)), and such films as My Darling Clementine (1946), Gunfight at the O.K. Corral (1957), Hour of the Gun (1967), Tombstone (1993), and Wyatt Earp (1994) each utilize the basic facets of this lawman’s legendary life to construct varied tales to worry over the morality of killings and revenge. Each of these Earp narratives illustrates larger trends within the genre and coheres closely to social standards contemporaneous with their release. Henry Fonda as Earp in My Darling Clementine, for instance, plays a calm, triumphant hero who is often viewed in a comic light, while James Garner as Earp in Hour of the Gun portrays a more pessimistic,

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defeated man. Lake’s biography presents Earp as a town-tamer, while the later Tombstone and Wyatt Earp unabashedly engage with his life as a gambler and pimp. What is clear within these differences is that these Earp tales, ostensibly all telling the same story, have adapted to the representational and moral ethics of their times. The Western’s changing justifications for gun violence have adapted along with changes within American ideas about self-defense and gun rights. Much like other revenge narratives that function as critiques of existing legal structures, the formal changes in the representations of gun violence over the history of the American Western signify contemporaneous critiques of the American legal system. The ethic of personal gun violence in the genre ought therefore to be seen not so much as a celebrated alternative to law but instead as a progressive complement to it, as an evolving way to ‘keep the peace’ in the effective absence of either the sophisticated system of American law or the absence of a substantively felt sense of ‘justice’ within that system. Indeed, seeing the Western’s gun violence as complementary rather than against ‘the law’ highlights the similarities between the detached objectivity of the American legal system and the disciplined stylization of Western gun violence. Seeing the Western as supporting—albeit in oblique and often unintentional ways—the progressive development of American law trains our attention on the significant continuities between this ethic of gun violence and the American legal system that supplants it after a piece of the savage frontier becomes a civilized town. The suggestion thus far that, instead of being somehow ‘anti-law,’ the Western genre instead has worked in the world as a supplement to the American legal system in our collective envisioning of conceptions of vengeance and justice, is meant to call upon a specific thread within scholarship on the Western, namely the hotly contested notion of the genre’s ‘evolution.’ Numerous influential film scholars and genre specialists—Robert Warshow, John G. Cawelti, Philip French, Jack Nachbar, Will Wright, Frank D. McConnell, Leo Braudy, and Thomas Schatz— were singled out in a vitriolic 1986 essay by Tag Gallagher, ‘Shootout at the genre corral: Problems in the “evolution” of the Western,’ wherein Gallagher complained that the genre’s ‘evolution’ had been massively overestimated.37 The danger of ‘the evolutionary hypothesis’ noted by Gallagher, although he does not explicitly term it as such, lies in the tendency toward oversimplification. The commitment these critics made to the notion that the genre has evolved—that is, that the Western genre has progressed through recognizable, and recognizably different, stages,



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with a formative ‘silent’ period setting the stage for a more earnestly triumphalist ‘classical’ period of the genre, a triumphalism that then was challenged during a self-conscious and introspective ‘revisionist’ period—caused them to misread texts within this tradition in adherence to the evolutionary schema, thereby ignoring complications and ­variations within the genre. Gallagher’s critique has been largely ignored in scholarship on the Western, as nearly every extended consideration of the genre’s history published since either implicitly or openly endorses the evolutionary hypothesis. Mathew Carter’s recent book-length study of the genre, The Myth of the Western: New Perspectives on Hollywood’s Frontier Narrative (2015), however, earnestly endorses Gallagher’s challenge.38 Indeed, Carter devotes much of the opening sections of his work to a carefully annotated and detailed synthesis of recent scholarship on the Western, demonstrating how other scholars—beyond those singled out by Gallagher—have continued to endorse this evolutionary hypothesis in their considerations of the genre’s historical arc and impact. In Carter’s estimation, scholars with widely divergent interpretations of the genre—whether approaching it as political allegory as in Richard Slotkin’s Regeneration through Violence (1973) and Gunfighter Nation (1992) or Patrick McGee’s from Shane to Kill Bill, from a New Western History perspective as in Patricia Nelson Limerick’s The Legacy of Conquest, giving it an avowed feminist reading as in Jane Tompkins’s West of Everything (1992),or even applying a position-foregrounding revisionism and hybridity as in Carlton Smith’s Coyote Kills John Wayne (2000)—still end up reaffirming this basic chronology of generic development.39 Carter’s professed aim in The Myth of the Western is ‘to question the professed aesthetic and ideological-mythological functions of the introspective categories: “classical”, “revisionist”, and “post”. I do not seek to deny that such descriptions can be suitably applied to certain Westerns; rather I seek to argue that they do not speak for the whole genre.’40 Carter’s main objection to this evolutionary hypothesis, very much like Gallagher’s, comes down to a lament about oversimplification: Hollywood and the popular cultural material it produces have often been unjustly reduced in status to that of a servile accomplice to dominant ideologies. For one, if we consider the common argument that Westerns have often had a great deal to say about the period in which they were made over that in which they are set … then they automatically call into question Limerick’s assertion that the genre merely ‘offered an escape from modern troubles’. On the contrary, as part of an industrial mass-medium, cinematic Westerns

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cannot but be affected and, to some extent, conditioned by ‘modern troubles’; their historical perspectives unavoidably influenced by contemporary cultural, political and even economic trends. The extent to which the cinematic Western wholeheartedly endorsed either the triumphalist version of Anglo-American history or the dominant contemporary ideologies prevalent at any given period remains, of course, a matter of rigorous debate. It is a debate that transcends specific genre concerns and is virtually as old as serious academic film criticism itself.41

We will have occasion to revisit the notion of the Western genre’s evolution in later chapters. Indeed, my chronology of the genre’s stylistic emphases on gun violence will erect a markedly similar ‘evolutionary hypothesis’ about the genre’s development that Carter so reviles. The important point here, however, is that the correspondence between a popular culture and other discursive regimes, whether in the period in question they are emergent, dominant, or resonant, certainly transcends specific genre concerns. Thus, while my analysis of the Western is committed to questioning whether the genre is necessarily a conservative, reactionary genre, or if, as I will be suggesting throughout, it could instead be productively read in relationship to the American legal system’s evolution as progressive, I have bracketed what I see as a rather insular concern within Western criticism, namely the classificatory schema of ‘classical,’ ‘revisionist,’ or ‘post.’ Those more directly concerned with this issue would do well to confront Carter directly. More important to the analyses in Gunslinging Justice than whether a film is ‘classical’ or ‘revisionist’ is an accounting of the Western’s longstanding fascination with guns, along with a genealogy of the types of firearms and the particular skill sets that are glamorized within these cultural texts. It is a truism that gun violence is integral to the Western. Indeed, one of the guiding premises of Gunslinging Justice is the centrality of gun violence in the Western’s imagination of the normative limits of the American legal system. And yet, the genre’s representations of gun violence have varied over the course of its history. The steady aim of James Fenimore Cooper’s Natty Bumppo is of an era and emphasis that differ from both the quick-draw heroics of the dime-novel hero and the balletic slow-motion carnage of Sam Peckinpah’s films. The Western pits a symbolic hero against an equally representative villain and the suspense that precedes their inevitable confrontation more often than not requires that these two be nearly equal in their firearm skills. The genre’s representations of gun violence have historically emphasized



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aim and speed. The Western hero proves his or her superior skill with a gun through both greater accuracy and being quicker on the draw. These two values typically exist in tandem, as in a way they must, for to be accurate but slow is as futile as to be the first to shoot while missing one’s opponent. At various periods in the genre’s history, however, either speed or accuracy predominates as the mark of the Western’s notion of gun heroics. The Western’s narrative justifications for the resort to gun violence— race, gender, and property—have much in common with the justifications of personal gun violence found in American self-defense doctrine and the jurisprudence associated with gun rights. In this book I argue that the Western’s iconographic emphasis on guns should be examined as cultural work that resonates with the legal evolution of American self-defense doctrine. To understand the normative implications of this cultural work, we need first to explore this juridical paradigm shift. To continue our weaving metaphor, then, the next two chapters will focus on the warp of American self-defense and gun rights jurisprudence.

Notes  1 Bean’s exploits were also the basis for a short-lived television series starring Edgar Buchanan, Judge Roy Bean (1955–1956).  2 My understanding of violence as the foundation of a legal system is drawn from René Girard’s Violence and the Sacred, trans. Patrick Gregory (Baltimore, MD: Johns Hopkins University Press, 1977).  3 For an extended discussion of populist and progressive trends and themes in twentieth-century Westerns, see Richard Slotkin’s monumental study, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (New York: Macmillan, 1992).  4 Terry K. Aladjem, The Culture of Vengeance and the Fate of American Justice (New York: Cambridge University Press, 2008), p. 3.  5 Exodus 21.23–5; Leviticus 24.18–20.  6 Many commentators have noted the limiting intention behind the lex talonis. See Susan Jacoby, Wild Justice: The Evolution of Revenge (New York: Harper & Row, 1983) and William Ian Miller, Eye for an Eye (New York: Cambridge University Press, 2006).  7 Francis Bacon, ‘Of revenge,’ in Brian Vickers (ed.), Francis Bacon: The Major Works (New York: Oxford University Press, 2002), pp. 347–8.  8 Ibid., p. 348.  9 Jacoby, Wild Justice, p. 5. 10 William Ian Miller, ‘Clint Eastwood and equity: Popular culture’s theory of

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revenge,’ in Austin Sarat and Thomas R. Kearns (eds), Law in the Domains of Culture (Ann Arbor: University of Michigan Press, 1998), pp. 161–202; p. 169. 11 Ibid. 12 Charles K. B. Barton, Getting Even: Revenge as a Form of Justice (Peru, IL: Open Court, 1999); Peter A. French, The Virtues of Vengeance (Lawrence: University Press of Kansas, 2001). 13 Aladjem, The Culture of Vengeance, p. 2. 14 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1975), p. 29. 15 For an in-depth analysis of the code of honor, the practice of dueling, and the system of blood revenge directly challenged by Elizabethan and Jacobean dictates as well as their bearing on revenge drama, see Fredson Bowers’s seminal work, Elizabethan Revenge Tragedy, 1587–1642 (Princeton, NJ: Princeton University Press, 1971 (1940)), especially Chapter I. For an analysis of the religious and ethical attitudes of the Early Modern audience and contemporaneous spiritual texts and their relation to Shakespeare’s Hamlet, see Eleanor Prosser’s Hamlet and Revenge (Stanford, CA: Stanford University Press, 1971), especially Chapters 1–3. For a reading of Elizabethan sumptuary laws and their relationship to comedic revenge in Shakespeare’s Twelfth Night, see Justin A. Joyce, ‘Fashion, class, and gender in Early Modern England: Staging Twelfth Night,’ in Cynthia Kuhn and Cindy Carlson (eds), Styling Texts: Dress and Fashion in Literature (Youngstown, NY: Cambria Press, 2007), pp. 49–66. I am indebted to Brain Sheerin for much of my understanding of revenge in Early Modern drama. His thoughts on the subject can be found in his dissertation, ‘Gift/Economy: Drama and the Politics of Giving in Early Modern England’ (University of Illinois at Chicago, 2008). 16 Prosser, Hamlet and Revenge, p. 77. 17 Katharine Eisaman Maus, ‘Introduction,’ in Four Revenge Tragedies (New York: Oxford University Press, 1995), pp. ix–xxxi; p. ix. 18 Ibid., p. xi. 19 Orit Kamir, ‘Cinematic judgement and jurisprudence: A woman’s memory, recovery, and justice in a post-traumatic society (a study of Polanski’s Death and the Maiden),’ in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds), Law on the Screen (Stanford, CA: Stanford University Press, 2005), pp. 27–81; pp. 28–9. 20 Miller, ‘Clint Eastwood,’ p. 174. 21 Ibid., p. 180. 22 Ibid., p. 183. 23 It is worth mentioning here that though Prosser does refer to the revenge plot as an ‘archetypal’ (73) narrative, her work, as well as Maus’s introductory essay, resists the temptation to transhistorical analyses and focuses instead on the contingent, historical context of Early Modern drama. Stevie Simkin’s Early Modern Tragedy and the Cinema of Violence (New York: Palgrave



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Macmillan, 2005), however, runs away with the transhistorical parallels between Early Modern dramatic themes and 1970s mainstream Hollywood films. 24 These films, Seven Men from Now (1956), The Tall T (1957), Decision at Sundown (1957), Buchanan Rides Alone (1958), Ride Lonesome (1959), and Comanche Station (1960), are so called due to the name of the production company formed by Randolph Scott and producer Harry Joe Brown. For more on Boetticher, see Jim Kitses’s Horizons West: Directing the Western from John Ford to Clint Eastwood (London: British Film Institute, 2004), particularly Chapter 4, and Chapter 7 of David Lusted’s The Western (New York: Pearson, 2003). 25 Will Wright, Sixguns and Society: A Structural Study of the Western (Berkeley: University of California Press, 1975), p. 155. 26 Ibid., p. 65. For more on Wright’s ‘vengeance variation,’ see Sixguns and Society, pp. 59–74, Chapter 6. 27 Simon Petch, ‘Trampling out the vintage: Revenge and resentment in High Noon,’ Sydney Studies in English, 29 (2003), pp. 68–82; p. 68. 28 Miller, ‘Clint Eastwood,’ p. 176. 29 Ibid., p. 168. 30 John G. Cawelti, The Six-Gun Mystique Sequel (Bowling Green, OH: Bowling Green State University Popular Press, 1999), p. 40–1. 31 Precisely when this scholarly trajectory began is a matter of some debate, but can at least be traced back to Justice Benjamin N. Cardozo’s essay, ‘Law and literature,’ first published in the Yale Review in 1925 and more readily available in Law and Literature and Other Essays and Addresses (New York: Harcourt, Brace, 1931). Since then, the number of entries is staggering. Some key foundational texts, however, are James Boyd White’s The Legal Imagination, abridged edn (Chicago, IL: University of Chicago Press, 1985 (1973)) and Richard A. Posner’s Law and Literature, 3rd edn (Cambridge, MA: Harvard University Press, 2009 (1988)). Two more narrowly focused works, Barry R. Schaller’s A Vision of American Law: Judging Law, Literature, and the Stories We Tell (Westport, CT: Praeger, 1997) and essays by Carl S. Smith, John P. McWilliams, and Maxwell H. Bloomfield collected under the title Law and American Literature: A Collection of Essays (New York: Knopf, 1983), have been especially influential on my thinking about these issues. More recently, this subset of legal scholarship has turned its attention more squarely to film with the publication of several important works, including John Denvir’s edited collection Legal Reelism: Movies as Legal Texts (Urbana and Chicago: University of Illinois Press, 1996), and Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey’s collection Law on the Screen (Stanford, CA: Stanford University Press, 2005). Steve Greenfield, Guy Osborn, and Peter Robson’s Film and the Law: The Cinema of Justice, 2nd edn (Portland, OR: Hart Publishing, 2010) provides a very useful overview of and orientation to this emergent field.

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32 In his seventeenth-century analysis of the power of the state and the role of citizens subject to the law, Leviathan: or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil, Thomas Hobbes famously described the state of ‘natural’ man as ‘solitary, nasty, brutish, and short.’ In essence, Hobbes’s model in Leviathan sees the threat of violence and the use of force as the organizing principles of society. Before there was a civilized society of reasoning free men, people faced the constant threat of violence in the warring state of nature. Civilized society was therefore set up by reasoning men to depend on a coercive force, a coercive force which protects citizens from each other. Given the warring state of man before civilization, Hobbes argued, free men gave up their exercise of violence and force as individuals and placed that violence in the hands of a sovereign power. Crucially, Hobbes’s understanding of sovereignty as a social contract entered into freely by reasoning subjects presupposes a violent, warring state of man which necessitates the collective, centralized contract of sovereign power to keep that violence in check. This contract model of sovereignty would dominate Enlightenment philosophy of the seventeenth and eighteenth ­centuries—including the works of Locke and Kant—and inform the political foundation of the American republic. Hobbes’s conception of a social contract for the collective centralization of force freely entered into by reasoning men also assumes the a priori existence of an individual subject temporally before the law. 33 Justice Oliver Wendell Holmes once quipped that the purpose of studying the law was to provide us with ‘what we want in order to appear before judges or … to keep … out of court.’ Quoted in Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983), p. 168. 34 Ibid., p. 173. 35 Stanley Fish, ‘Don’t know much about the Middle Ages: Posner on law and literature,’ in Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, NC: Duke University Press, 1989), pp. 294–314; p. 310. 36 Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, ‘On law and film: Broadening the focus,’ in Sarat, Douglas, and Umphrey (eds), Law on the Screen, pp. 1–26; p. 2. 37 Tag Gallagher, ‘Shootout at the genre corral: Problems in the “evolution” of the Western,’ in Barry Keith Grant (ed.), Film Genre Reader III (Austin: University of Texas Press, 2003), pp. 262–76. 38 Matthew Carter, The Myth of the Western: New Perspectives on Hollywood’s Frontier Narrative (Edinburgh, UK: Edinburgh University Press, 2015). 39 Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 1600–1860 (Middletown, CT: Wesleyan University Press, 1973) and Gunfighter Nation; Patrick McGee, From Shane to Kill Bill: Rethinking the Western



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(Malden, MA: Blackwell, 2007); Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: W. W. Norton, 1987); Jane Tompkins, West of Everything: The Inner Life of Westerns (New York: Oxford University Press, 1992); Carlton Smith, Coyote Kills John Wayne: Postmodernism and Contemporary Fictions of the Transcultural Frontier (Hanover, NH: University Press of New England, 2000). 40 Carter, The Myth of the Western, pp. 4–5. 41 Ibid., p. 117.

2

No retreat: American self-defense doctrine

Since at least the 1860s, Westerns have portrayed Anglo masculinity by emphasizing bravery, a sense of honor, skill with guns, and above all a man’s willingness to stand his ground and kill. Such is the portrait of a man immortalized by George Ward Nichols in a fictionalized account of a shootout between ‘Wild Bill’ Hickok and a man named Dave Tutt, which appeared in Harper’s New Monthly Magazine in 1867: Tutt, who war alone, started from the court-house and walked out into the squar, and Bill moved away from the crowd toward the west side of the squar. Bout fifteen paces brought them opposite to each other, and bout fifty yards apart … At that moment you could have heard a pin drop in that squar. Both Tutt and Bill fired, but one discharge followed the other so quick that it’s hard to say which went off first. Tutt was a famous shot, but he missed this time; the ball from his pistol went over Bill’s head. The instant Bill fired, without waitin ter see ef he hit Tutt, he wheeled on his heels and pointed his pistol at Tutt’s friends, who had already drawn their weepons. ‘Aren’t yer satisfied, gentlemen?’ cried Bill, as cool as an alligator. ‘Put up your shootin-irons, or there’ll be more dead men here.’ And they put ’em up, and said it war a far fight.1

The shootout Nichols dramatizes here encapsulates the Western’s imagination of ritualized gun violence: each man is armed as he faces off to resolve a dispute—this one purportedly about gambling or a woman (see Figure 3). The antagonists are alone, walking purposefully toward each other in a decisive kill-or-be-killed confrontation. Both are skilled marksmen, Hickok so much so that he can comfortably turn away from



No retreat: American self-defense 49

3  Rendering of ‘Wild Bill’ Hickok and Dave Tutt duel, Harper’s New Monthly, 1867

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an armed assailant after firing only one shot. Equally important to the imagination of the Western and the evolution of the American legal system is the fact that all the witnesses deem the fight to have been a fair one. That the gunslinging hero depicted above has served as the fulcrum for the Western’s mythologizing of American history is hardly debatable. Whether this figure accurately reflects the historical past, however, is a more ambiguous issue that has preoccupied historians and cultural critics. Before Hollywood and beyond John Ford’s Monument Valley, how many such men lived and died by their guns? The significance of gunfighters in nineteenth-century Western history remains contested. Lee Clark Mitchell echoes the common view when he notes that ‘Western plots have had only the vaguest basis in actual conditions—conditions that in any event were marginal to the consciousness of most Americans. Cowboys, cattle towns, and long drives north formed a minor chapter in western history; range wars were simply labor strikes on horseback, and the “lone gunman” a rare psychopath, regarded as such and with contempt.’2 Richard Maxwell Brown, on the other hand, stresses that ‘there were a great many gunfighters—not just a few famous ones like Hickok … gunfighters were important in objective terms, not merely for their powerful impact on the American imagination.’3 Were these infamous gunslinging disputes really resolved in such elaborately ritualized modifications of the ancient code of dueling, or were such killings more often far less ‘honorable’ and far more spontaneous? In spite of the exploits of gunslingers we find in the innumerable dime novels and literary and cinematic texts that make up the Western tradition, a great deal of historical scholarship has been dedicated to discrediting the genre’s mythologization of gun violence as an ‘honorable’ way of resolving disputes.4 More to the point, was gun possession really so widespread?5 These and other ‘historical accuracy’ issues have plagued scholarship on Westerns and firearm ownership. Irrespective of the genre’s consistency with any actual historical Western past, few seem to have wondered about the relationship between the Western’s imagined gun violence and the progressive development of the American legal system. Nichols’s fictionalized account hangs on the dramatic potential of a man-to-man confrontation: disputes resolved boldly, decisively, and without third-party intervention. By the time the piece appeared in Harper’s New Monthly, the mediations of the American legal system had also already decided the ultimate resolution of this actual shooting. Far



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from meeting his demise on a ‘lawless frontier,’ Hickok killed Tutt on a street in Springfield, Missouri in July 1865. Arrested for murder and tried on the reduced charge of manslaughter, Hickok was subsequently found not guilty by a jury of his peers. Hickok’s gun violence was justified, then, within the constraints of both the Western genre and the American legal system. In this chapter I outline this particular element of the American legal system, the American self-defense doctrine that evolved to the point at which it could at least condone, if not endorse, such a shooting. While I discuss some state and federal legislation, I emphasize Supreme Court opinions due primarily to the distinctive importance of judicial review in American jurisprudence. Judicial review can be broadly taken to comprise a range of methods employed by democratic governments whereby legislation or governmental action can be challenged. In the United States, however, judicial review carries a more specific meaning, referring uniquely to the capacity of the Supreme Court to reverse decisions handed down by lower courts and force new trials, to nullify state or federal legislation that it finds to be incompatible with the American Constitution, and to invalidate executive action that it declares unconstitutional. Significantly, the Court may also invalidate its own findings in later opinions. As enshrined in Marbury v. Madison, judicial review in the American legal system refers to a broad sweep of powers vested in the Supreme Court.6 Court opinions do not, of course, always conform to public sentiment, as evinced by the primarily negative connotation implied in the frequently invoked phrase ‘activist judges.’ And yet, due in large part to the extensive power of judicial review, the opinions of the Supreme Court set legal, administrative, and normative precedents for the American legal system. Murder charges, however, are, strictly speaking, matters of state jurisdiction, as are state statutes that explicitly condone or condemn the use of self-defense in the application of rules governing the prosecution of killings. Accordingly, this chapter’s analysis of American self-defense doctrine will close with an examination of more recent state statutes that enshrine a particularly aggressive position under the rubric of ‘Stand Your Ground.’ English common law has long articulated a citizen’s positive duty to retreat in the face of mortal violence. Seen as a check against exaggerated self-defense claims and a limitation on the justifiable use of mortal violence by individuals, as far back as the thirteenth century English common law ‘obliged one who was assailed and in fear of death or great

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bodily harm to retreat “to the wall” at one’s back before killing in self-­ defense.’7 Underlying this obligation to retreat was the theory that the Crown held a monopoly on violence. In the late eighteenth century, the obligation to retreat was upheld in English common law by Sir William Blackstone, lest ‘the right to defend may be mistaken as the right to kill.’8 In his Commentaries on the Laws of England, Blackstone explicitly invokes the Crown’s monopoly on violence to argue for a retreat requirement: ‘And though it may be cowardice, in time of war between two independent nations, to flee from an enemy; yet between two fellow subjects the law countenances no such point of honour: Because the king and his courts are the vindices injuriam, and will give to the party wronged all the satisfaction he deserves.’9 The duty to retreat in English common law represents a commitment to the rule of the state, and functions to enforce the state’s monopoly on both dispute resolution and the taking of human life. This commitment continues to this day in English common law. The American legal system, however, radically revised existing retreat doctrine as inherited from English common law. As early as 1762, the English tradition of imposing a positive duty to retreat was coming into question, first by the Englishman Sir Michael Foster, who worried that earlier supporters of the positive duty to retreat had, like Blackstone, placed too much emphasis on the supreme value of human life and might not have adequately judged the import of the matter. Foster asserted to the contrary that ‘the injured party may repel force by force in defense of his person.’10 The first distinctively American work on the matter, Joel Prentiss Bishop’s 1856 Commentaries on the Criminal Law, echoes Foster’s view.11 As the United States continued to expand westward and admit more states to the union during the nineteenth century, however, a more radical transformation in legal and social ideals occurred as judicial precedent firmly moved the American legal system away from the obligation to retreat. Crucially, American self-defense doctrine allows a person to use force against an attacker without requiring that person to first consider whether retreating is an option. Founded on a rejection of the English common law’s retreat obligation, the essence of American self-defense doctrine consists of four main points. First, an attack must present a direct, imminent danger. Second, the danger such an attack presents must not only be direct and imminent, but it must also involve a grave threat of death or serious harm. Third, provided a person is otherwise within his or her rights—i.e., somewhere he or she is allowed to be— an individual so attacked may stand his or her ground. Finally, if in



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defending oneself one kills one’s assailant, then that homicide is legally justifiable. The American revision of the English duty to retreat occurred gradually through a series of legal precedents. A few important homicide cases from the late nineteenth and early twentieth centuries mark the doctrine’s historical trajectory, and the opinions issuing upon the verdicts in these cases have been widely cited in the hundreds of cases that have followed them, reinterpreting the issue of retreat from a uniquely American perspective. What makes the American stance unique is not only the abandonment of the traditional English duty to retreat in the face of an attacker, but also the rhetorical strategies made evident in  the  corresponding jurisprudence. In short, this rhetorical stance amounts to a celebration of individual liberty. Some of the more nuanced judicial decisions invoke property rights and the ‘castle doctrine’ to buttress the extension of the right to use deadly force. In every case, though, the judgments rely on the notion of individual liberty and posit self-­defense as the exercise of an individual right. Two nineteenth-century state cases clearly demonstrate the evolution of American self-defense doctrine beyond its English heritage, which had required retreat and advocated the avoidance of personal violence. The first case, Erwin v. State, was decided before the Ohio Supreme Court in 1876.12 The second case, Runyan v. State, was decided in Indiana just one year later in 1877.13 These cases form an important pair reflecting the transition of American self-defense doctrine. First, both cases were appealed because the trial judges invoked the English common law tradition and instructed the juries that the accused were legally obliged to avoid the use of deadly force; simply stated, the juries had been incorrectly informed that the defendants were supposed to have retreated when attacked. Instead, James Erwin and John Runyan both stood their ground during their respective confrontations and fought back, killing their assailants. Beyond the fact that the Ohio and Indiana high courts reversed the original convictions, in effect rejecting the obligation to retreat, these cases are also important because, by explicitly articulating the rejection of the duty to retreat, both stressed that Erwin and Runyan were otherwise without fault. The lengthy discussion of the English common law’s duty to retreat found in the Erwin decision, penned by Justice George W. McIlvaine, clearly indicates that a transformation of this common law tradition was at stake. McIlvaine finds the heart of the matter to have been an inconsistency within the law:

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The question then, is simply this: Does the law hold a man who is violently and feloniously assaulted responsible for having brought such necessity upon himself, on the sole ground that he failed to fly from his assailant when he might have safely done so? The law, out of tenderness for human life and the frailties of human nature, will not permit the taking of it to repel a mere trespass, or even to save life, where the assault is provoked; but a true man, who is without fault, is not obliged to fly from an assailant who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.14

Commentators on the English common law had recognized the importance of a state monopoly on violence. Here instead the Ohio Supreme Court mixes a view of ‘the law’ as motivated to protect the ‘tenderness of human life and the frailties of human nature’ with a decidedly American notion of personal rights and liberties. Expressed most clearly in the idea of a ‘true man, who is without fault,’ the opinion in this case begins a transformation in American jurisprudence stressing the right of the individual to utilize violence to protect his interests and liberties. The Indiana Supreme Court opinion in the Runyan case, written by Justice William E. Niblack, agreed, finding a retreat instruction to be ‘obnoxious’ and reversing the lower court’s decision.15 After discussing the lower court’s instructions, Niblack’s opinion alludes favorably to Erwin and asserts that a transformation in American jurisprudence is indeed at hand: A very brief examination of the American authorities makes it evident that the ancient doctrine, as to the duty of a person assailed to retreat as far as he can, before he is justified in repelling force by force, has been greatly modified in this country, and has with us a much narrower application than formerly. Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendency is well illuminated by the recent decisions of our courts … The weight of modern authority, in our judgment, establishes the doctrine, that, when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justified.16

Exercising the authority of judicial review to argue against ‘the enforcement of any rule which requires a person to flee when assailed,’ the Indiana Supreme court here follows Erwin by articulating a right of



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self-defense. Furthermore, while Erwin suggested that this right was grounded on being without fault, Runyan carries the justification a step further by suggesting the importance of being ‘in a place where he has a right to be.’ In other words, taken together, these cases stress the exercise of personal liberty. As long as the assailed has not provoked an attack and is otherwise within his or her rights, he or she may act in self-defense. The justifications for self-defense articulated with Erwin and Runyan rest on a notion of individual rights that emphasizes personal liberty and economic opportunity. The exercise of rights and liberties by individuals has long been integral to American notions of democracy, and is a fundamental tenet of the Western genre’s national mythology.17 Here I stress the importance of exercising rights so long as the opportunities for exercising these rights were seen as being equally available, at least to other white men. In the historical period broadly contemporaneous with these influential cases, this conception of equal opportunity underlies Horace Greeley’s call for Westward adventure, ‘Go West, young man,’ the massive boom-and-bust cycles exemplified by the 1849 California gold rush and the many mining towns such as Deadwood, Tombstone, and Cripple Creek, and even the rush of people laying claim to plots of land after the passage of the Homestead Act in 1862. Importantly, the spoils were seen as coming to those who simply got there first. A race for opportunities, the promise of economic wealth and the chance for development and land possession underwrote much of the nineteenth-century conception of and justification for the march of Anglo civilization westward across the American continent. The American faith in the ability of the individual to succeed regardless of social station is a deeply cherished civic value; born of a rebellion against the inherited privilege of the English aristocracy, this value is still very much with us today. Similarly sacrosanct is the American ideal of private property. The redefinition of self-defense as an extension of other rights and liberties within the American self-defense doctrine unsurprisingly relied on the importance of personal property in a number of cases that were crucial to the evolving jurisprudence. Jealous of the Crown’s monopoly on violence, even the English common law that required retreat had long made exceptions when an attack occurred in the home. Blackstone captures this sentiment when he notes that ‘the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles [sic] it his castle, and will never suffer it to be violated with impunity.’18 Generally referred to as the ‘castle doctrine,’

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this conception held that a man’s home is his castle and therefore a place of special immunity.19 The 1895 Supreme Court case Beard v. United States continued the transformation of American self-defense doctrine, carrying the castle exception even farther than in English common law, holding that a man’s castle need not be limited to his actual home, but could include affiliated property as well. In a dispute over a cow that culminated in a confrontation in an orchard, James Beard struck a man over the head with the butt of a shotgun; the man subsequently died from the blow and Beard was tried for murder and convicted of manslaughter. As in Erwin and Runyan, the case was appealed on the grounds that the trial judge had incorrectly informed the jury that Beard was required to retreat, but the opinion contains a lengthy justification of the right of self-defense.20 Holding that the lower court ‘committed an error of a more serious character’ by invoking the duty to retreat, Justice Harlan’s opinion carefully explains its reliance on the castle doctrine: The [lower district] court seemed to think if the deceased had advanced upon the accused while the latter was in his dwelling-house and under such circumstances … the accused had taken the life of his assailant, having at that time reasonable grounds to believe, and in good faith believing, that his own life would be taken or great bodily harm done him unless he killed the accused, the case would have been one of justifiable homicide. To that proposition we give our entire assent. But we cannot agree that the accused was under any greater obligation, when on his own premises, near his dwelling-house, to retreat or run away.21

In reversing the trial court’s decision, the Supreme Court based its findings largely on an extended understanding of the exception granted to private property even within the more restrictive English common law. The Supreme Court’s reliance on the ‘castle’ exception plays an important role in the transformation of American self-defense doctrine. Harlan’s opinion approvingly quotes Erwin and Runyan and further justifies an extension of the castle doctrine by explaining that Beard ‘was where he had a right to be when the deceased advanced upon him in a threatening manner.’22 Although Beard explains this right by extending the idea of the special immunity of a man’s house to include the entirety of his property, this rhetorical move was hardly necessary. In Erwin the killing took place in a shed that the court carefully explained was ‘between their houses, but not within the curtilage of either,’ and in Runyan the incident occurred in a public square.23 In other words, both



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earlier state cases affirmed a right to self-defense outside the home. Although Beard invokes the castle exception, it is better viewed alongside Erwin and Runyan as consistent with jurisprudence that questioned the soundness of English retreat doctrine and argued for a broader understanding of the merits of self-defense in accordance with the mindset of a ‘true American man’ who was within his rights. The invocation of the sanctity of personal property, or the castle doctrine, in Beard seems superfluous, even redundant, as the reinterpretation of justifiable homicide in American self-defense doctrine did not confine self-defense to the interior of the home. In the Western genre, this seemingly redundant reliance on the sanctity of the home is played out obsessively. The genre’s rhetorical tic for changing scenes, ‘meanwhile, back on the ranch,’ suggests that whatever else may be involved in the machinations of plot and suspense, it is always already important what is happening within, around, and near a private dwelling. Indeed, the vacillation between these two scenes, the home or ranch and anywhere else removed from this space of relative safety and civility, highlights both the sanctity and precarious safety of this place of ‘special immunity.’ On the one hand, personal property, especially the private home as symbolized by the humble dwelling of the small farmer or rancher—metaphorically the Jeffersonian yeoman writ large—is championed incessantly. On the other hand, though, the climactic gun violence that serves rhetorically to resolve narrative conflicts almost invariably happens outside the home, in a public space, very often on the street.24 The populist tradition within the genre is instructive in this regard. In many ways inherently populist, the Western’s plots consistently invoke an opposition between the consolidated financial interest of an industrialized East and the private property interests of a more agrarian West.25 More specifically, as in films such as Shane (1953), The Magnificent Seven (1960), and Heaven’s Gate (1980), among many others, the hero’s gun violence is made justifiable by the fact that he fights on behalf of small, independent property owners even though the actions occur outside the home. At stake in both the nineteenth-century jurisprudential reinterpretation of justifiable homicide and the Western genre’s defense of ‘the little guy’ is a broad reading of the right to use force to protect individual liberties. Private property functions in both of these instances as the unquestionably sacred space wherein the use of deadly force has long been allowed. Drawing analogies to this space, as in Beard and American self-defense doctrine, or glorifying the climactic gun violence of a hero who fights to preserve values associated with this space as in much of

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the Western genre, is part and parcel of the broader rhetorical move to expand the limits of justifiable homicide. Put another way, this is an important moment in the weaving together of the warp and woof of the fabric of American self-defense doctrine. The imposition of a duty to retreat from violent confrontation at the turn of the twentieth century remained largely a matter of jurisdiction: some states held that one must retreat from an assailant and avoid killing at all costs, while others allowed individuals to stand their ground. Determining the exact status of the retreat requirement in separate jurisdictions at the time would be difficult; doing so would require a review of opinions rendered in at least every state and territorial murder case along with the statutory regulations applying in each case. Even such exhaustive research would fail to remove all ambiguity from the issue. A judge or jury might selectively impose or uphold a duty to retreat and decisions on subsequent appeals might similarly equivocate. One contemporaneous estimate from 1903, however, cites at least fifteen jurisdictions that allowed an assailed individual to stand his or her ground and at least thirteen that imposed a duty to retreat. I report this split based on an accounting provided by Joseph H. Beale in his 1903 essay ‘Retreat from a murderous assault.’26 Even his thorough and relatively contemporary accounting, however, demonstrates the difficulty of clearly delineating differences between jurisdictions on the matter of retreat. Beale counts Minnesota among the jurisdictions which required retreat. Yet, within just two years, in the Minnesota case State v. Gardner, a duty to retreat would be explicitly challenged and rejected by the state Supreme Court. An exhaustive accounting of the differences between jurisdictions over retreat would, in other words, need to be completed for every year and would need to be constantly updated. In addition to providing this insightful catalog of jurisdictional differences regarding retreat, Beale’s essay represents the view of a leading legal theorist of the contemporaneous transformation in American self-defense doctrine. Writing in the Harvard Law Review, Beale relies on the contradictory stances taken by the US Supreme Court as well as on differences between jurisdictions that require retreat and those that do not, decrying the Supreme Court’s rejection of retreat: As to the general principle about which the American authorities are in such conflict, there should be no theoretical doubt. No killing can be justified, upon any ground, which was not necessary to secure the desired



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and permitted result; and it is not necessary to kill in self-defense when the assailed can defend himself by the peaceful though often distasteful method of withdrawing to a place of safety. The problem is the same now in America as it was three centuries ago in England.27

Beale based his rejection of the emergent American self-defense doctrine on a fundamental trust in a system of legal redress which would prevent disputes from being settled personally. For Beale, the deadly violent confrontations at issue were ‘beyond all law.’28 Beale’s minority opinion was founded on an opposition between the ‘merely natural uncontrolled impulses of the individual’ and ‘the advance of civilization and culture’ embodied in ‘the law.’29 For Beale, the ultimate interest of the state and its legal system ought to ‘require that one man should live rather than that another should stand his ground in a private conflict.’30 This opposition between the natural passions of violent disputes and the controlled, mediated avenues for seeking legal redress is fundamental to the reification of a particular legal system as ‘the law.’ For whenever ‘the law’ is called upon, it is invariably envisioned as opposed to an alternative system for resolving disputes. Within such a binary rhetorical structure, ‘the law’ is ideally more peaceful and more restrained, representing the mediated resolution of disputes rather than the direct, personal resolution of conflict that is putatively more brutal and deadly. Despite the rhetorical efficacy of this structure, however, the opposition cannot hold, for in the American legal system ‘the law’ was soon to sanction just such personal violence. It is worth pointing out explicitly here a point on which I will elaborate later, that this opposition does not, on my reading, hold in the Western genre either. In its simplest form, if the American legal system was progressing toward a broader sanctioning of personal gun violence—I have been demonstrating in this chapter that it was—then it makes little sense to see the United States’ most enduring popular genre’s endorsement of ennobled, ‘defensive’ gun violence as somehow ‘anti-’law. After 1897 the federal Supreme Court heard no challenges regarding self-defense for well over a decade. Variations across jurisdictions continued, and the soundness of requiring retreat remained an open question. A homicide case in Texas, however, would soon yield a decisive opinion on the matter. In 1917, Robert B. Brown killed James P. Hermes. Apparently there had been bad blood between the two of them for some time: Hermes had threatened that, the next time the two met,

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‘one of them would go off in a black box.’31 The fatal dispute between the two involved the removal of some dirt, for Robert Brown was supervising the excavation of a building site for a post office. Arguing over the removal of the dirt, Hermes attacked Brown with a knife and Brown shot Hermes four times, killing him. Because the confrontation occurred at a construction site for a post office, the trial was within federal jurisdiction and therefore was held at the federal level. Convicted of second-degree murder in a federal district court, Brown appealed unsuccessfully to a federal circuit court. The Supreme Court agreed to hear his case, and in a seven-to-two majority reversed Brown’s conviction, finding not only that Brown did act in self-defense when killing Hermes, but also that this killing was justifiable because Brown need not have retreated to avoid killing his attacker. The Supreme Court opinion in this case, Brown v. United States (1921), written by Oliver Wendell Holmes, plainly sets down a definitive statement of the transformation of American self-defense doctrine.32 Holmes notes that the trial court had instructed the jury that Brown was obligated to retreat from the confrontation to avoid killing Hermes, echoing the jury instructions that were given in Erwin and Runyan, and then succinctly presents the issue at hand, beginning by invoking an unnamed ‘ancient law,’ according to which ‘the defendant was not entitled to stand his ground … So the question is brought out with sufficient clearness whether the formula laid down by the Court and often repeated by the ancient law is adequate to the protection of the defendant’s rights.’33 To Holmes, the formula requiring retreat is decidedly inadequate: ‘If a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that [sic] if he kills him he has not exceeded the bounds of lawful self-defense … detached reflection cannot be demanded in the presence of an uplifted knife.’34 Holmes here concisely and powerfully states the essence of the American self-defense doctrine. Rejecting the English common law’s retreat obligation, this doctrine allows individuals who are attacked to stand their ground and utilize force in self-defense. As each of the cases examined above makes clear, in the American tradition this is not simply a license for widespread personal violence. To claim self-defense, an attack must present a direct, imminent danger of death or serious harm.35 Furthermore, American self-defense doctrine requires that individuals claiming self-defense must be otherwise within their rights—that is, somewhere they are allowed to be. Finally, American self-defense doctrine envisions the exercise of violence in



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self-defense as a right, a liberty, justified within the legal system that seeks not social justice but formal equality: if in standing your ground in the face of imminent mortal danger you kill your assailant then that homicide is legally justifiable. It could be argued that English common law also allowed individuals so attacked to defend themselves, but the retreat requirement makes all the difference. Requiring retreat ‘to the wall’ means that at each step, at every moment, in a violent quarrel a person under attack must assess and reassess the safety of retreating. Such reflection and consideration imposes a great burden on an individual in the heat of a deadly confrontation. Crucially, American self-defense doctrine allows defense against such an attack to proceed without first considering whether retreating is an option. Having evolved through jurisprudence, American self-­ defense doctrine is perfectly encapsulated here by Holmes’s memorable phrase, ‘detached reflection cannot be demanded in the presence of an uplifted knife.’ After Holmes’s 1921 opinion in Brown, the Supreme Court would not hear another self-defense case that explicitly weighed an obligation to retreat against a right to stand one’s ground for over sixty years.36 This long period of silence and stasis in the evolution of American self-defense doctrine precisely coincides with the rise to prominence and massive influence of the Western genre, especially as a popular cinematic form. In considering the interwoven evolution of American self-defense doctrine and the Western genre, this coincidence cannot go unremarked. Again, to be very explicit, this is another of the generative resonances, the productive intersections, between the warp and woof of the woven fabric of American gun culture. First, as numerous scholars of popular culture and film have suggested, the social function of narrative fiction film has often been to provide rhetorical or emotional solutions to what are, in effect, irresolvable complexities. While the courts and legal discourse maintained a long silence, the most influential popular art form continually and obsessively enacted and dramatized a formulaic ritual that simultaneously broadened and restricted the limits of justifiable gun violence. The popularity and enduring influence of the Western’s gun dramas suggest that common justifications for private gun violence and rationalizations for self-defense were less obvious and more unsettled in society at large than the matter-of-fact brevity of Holmes’s memorable quotation seems to have acknowledged. The Western’s continual enactment of dramas involving justified gun violence has had a lasting normative impact on the contours of the

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American legal system. Isolated specialized fields, insulated practices with distinctive discourses, entirely separate disciplines (cordon them off however you will) exist solely in the foundationalist or formalist imagination. In the world of human existence—of legal interpretations and cultural fantasies which together shape our lives—these seemingly hermetic institutions have evolved in parallel. Even if the law wishes, as Stanley Fish has argued, ‘to be distinct, not something else,’ its ostensibly formal existence reveals it to be a specialized rhetorical form of institutional practice that ‘we believe in because it answers to, even as it is the creation of, our desires.’37 Creating the very desires to which it answers, the American Western and American self-defense doctrine have long articulated a normative prescription for American identity. At the time of this writing, individual jurisdictions still differ in applying and articulating American self-defense doctrine, although more and more are adopting or proposing new legislation to broaden the category of justifiable homicide.38 A growing majority now follow nineteenth-­century jurisprudence, adopting statutes that explicitly allow one to stand one’s ground when attacked. Even within the minority of states that persist in requiring retreat, the issue is often moot, for the widespread possession of firearms has long made juries sympathetic to defendants who most keenly felt that they could retreat no further from an assailant when that assailant is brandishing a gun. The notion that possession of personal firearms by individuals somehow makes requiring retreat more complicated in America than in England, where the laws do not grant its citizens such a right, is an important component of American self-defense doctrine.39 This notion was explicit even in many late nineteenth- and early twentieth-century cases at the state level. The above-mentioned State v. Gardner, from 1905, for example, bases its rejection of retreat on widespread firearm possession: The doctrine of ‘retreat to the wall’ had its origins before the general introduction of guns. Justice demands that its application have due regard to the present general use and to the type of firearms. It would be good sense for the law to require, in many cases, an attempt to escape from a hand to hand encounter with fists, clubs, or even knives, as a condition of justification for killing in self-defense; while it would be rank folly to so require when experienced men, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or to do great bodily harm. What might be a reasonable chance for escape in the one situation might in the other be certain death.40



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Similarly, even Beale’s scathing rejection of the emerging American self-defense doctrine from 1903 notes the importance of guns as a complicating matter: ‘It is of course true that to retreat from an assailant with a revolver is dangerous … But because retreat is less often safe than in the days of knives and small swords, it by no means follows that retreat when certainly safe should be less requisite.’41 It may be stating the obvious to argue that the pervasiveness of guns in the evolution of American self-defense doctrine and the Western genre’s conception of justifiable homicide have much to do with the unique American constitutional guarantee of individual gun ownership. Yet, the link between guns and American self-defense doctrine seems more indelible today than ever. Not only have firearms made a retreat requirement seem more onerous by making attacks more dangerous, but guns have also facilitated a social and political evolution whereby defensive homicides are ever more readily justifiable within the American legal system. With this trajectory in mind, in the next chapter I briefly trace the evolution of gun rights within American jurisprudence.

Notes  1 George Ward Nichols, ‘Wild Bill,’ Harper’s New Monthly Magazine, 34:201 (Feb. 1867), p. 277. Available at http://digital.library.cornell.edu/h/harp. Accessed Aug. 8, 2017.  2 Lee Clark Mitchell, Westerns: Making the Man in Fiction and Film (Chicago, IL: University of Chicago Press, 1996), p. 5.  3 Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (New York: Oxford University Press, 1991), p. 39.  4 On the questions of honor within the American West, see Bruce A. Rosenberg, The Code of the West (Bloomington: Indiana University Press, 1982) and Kent Ladd Steckmesser, The Western Hero in History and Legend (Norman: University of Oklahoma Press, 1965). While dueling is certainly an important precedent for the Western’s ritualized gunfights, there are significant differences between Old World dueling and the Western shootout. First, although early Germanic kings established trials by combat in an attempt to rein in vengeance killings, the code duello evolved as an aristocratic practice for establishing social rank wherein the important point was more often the right to duel than it was the settling of a substantive dispute. Richard Slotkin, in ‘Equalizers: The cult of the Colt in American culture,’ in Bernard E. Harcourt’s edited collection, Guns, Crime, and Punishment in America (New York: New York University Press, 2003), pp. 54–67, has argued that in America, however, dueling was fueled by the invention of repeating

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firearms, which enabled a broad ‘democratization of the right to fight’ (57). Second, the long history of dueling has involved all manner of weapons besides firearms. While one of the main points of dueling codes involves the choice of weapons, the Western’s climactic violence is invariably a matter of gunfights. Even with the widespread adoption of firearms in dueling practices, the guns used were more often incredibly inaccurate smooth-bored pistols than revolvers with modern cartridges and rifled barrels that are far more likely to actually kill an opponent. Third, while the Western’s shootouts do follow a recognizable generic pattern, the fine points of the ritual are rarely spoken, much less written down, whereas the highly regulated code duello was extensively codified in handbooks in various countries for several centuries. Robert Baldick cites de Tocqueville’s wonderful account of the transition of dueling in America, noting the vast difference in both causes, practice, and passion in the New World, in The Duel: A History of Dueling (New York: Clarkson N. Potter, 1965), p. 115: ‘Alexis de Tocqueville, commenting in 1831 on the state of dueling in America, observed that “the duel based on the extreme susceptibility to points of honour, the monarchic duel, is almost unknown in America; the laws which oblige a man to fight in some parts of Europe in certain defined cases do not exist at all.” He conceded that duels did take place in the New World, but described them as no more than a means outside the law of satisfying violent passions. “In Europe,” he wrote, “one hardly ever fights a duel except in order to be able to say that one has done so; the offense is generally a sort of moral stain which one wants to wash away, and which most often is washed away at little expense. In America one only fights to kill; one fights because one sees no hope of getting one’s adversary condemned to death. There are very few duels, but they almost always end fatally.’ While dueling may not have been significantly prosecuted, it was always viewed as an extralegal affair. As I hope to make clear in this chapter, the Western’s ritualized gunfights helped to expand the limits of justifiable gun violence in American law. See Francis Bacon, The Charge of Sir Francis Bacon Knight, His Majesties Attourney generall, touching Duells, upon an Information in the Star-chamber against Priest and Wright (New York: Da Capo Press, 1968 (1614)) for an Early Modern juridical rejection of dueling as incompatible with legal redress of grievances. For more on the history of dueling, see Baldick’s The Duel. For more on the American transformation of dueling, see Dick Steward’s Duels and the Roots of Violence in Missouri (Columbia: University of Missouri Press, 2000).  5 The relative absence or near-ubiquity of firearms in American history has generated considerable critical inquiry. In a related but decidedly more acerbic register, much attention has recently been devoted to the original meaning of the Second Amendment’s guarantee of personal gun possession. In Arming America: The Origins of a National Gun Culture (Brooklyn, NY: Soft Skull Press, 2003), Michael A. Bellesiles claims that guns were relatively



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rare in early American history, indeed until well after the Civil War. Both Bellesiles’s claim and his research method have since been disputed, somewhat bitterly. Clayton E. Cramer, in Armed America: The Remarkable Story of How and Why Guns became as American as Apple Pie (Nashville, TN: Nelson Current, 2006), offers a particularly apoplectic refutation of Bellesiles.  6 Although judicial review was initially part of the conception of the US Constitution and an intricate part of the debates concerning ratification, the Supreme Court first established its scope in the 1803 case, Marbury v. Madison. Justly famous for containing the first declaration of unconstitutionality, the opinion in this case has generated a wide field of inquiry in itself, a summary of which is well beyond the scope of this project. For an overview of the case’s importance and an excerpt of the opinion, see Erwin Chemerinsky’s Constitutional Law (New York: Aspen Publishers, 2001), pp. 1–10. More detailed discussions of the case can be found in William E. Nelson’s Marbury v. Madison: The Origins and Legacy of Judicial Review (Lawrence: University of Kansas Press, 2000) and Cliff Sloan and David McKean’s The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court (New York: Public Affairs, 2009).  7 Brown, No Duty to Retreat, p. i.  8 Quoted in ibid., p. 3.  9 Sir William Blackstone, Commentaries on the Laws of England (1765–1769), Book 4, Chapter 14, ‘Of homicide,’ p. 185. Available at http://avalon.law.yale. edu/subject_menus/blackstone.asp. Accessed July 10, 2017. 10 Quoted in Brown, No Duty to Retreat, p. 4. 11 Quoted in ibid., pp. 7–8. 12 Erwin v. State, 29 Ohio St. 186 (1876). Convicted of murdering his son-in-law in a dispute over a shed that sat between their two houses, James Erwin appealed his initial case on the grounds that the trial judge had incorrectly instructed the jury that he had a duty to retreat; the Ohio Supreme Court agreed, reversing Erwin’s conviction. 13 Runyan v. State, 57 Ind. 80 (1877). Tried for the murder of a man he killed during a bitterly partisan election-day dispute, John Runyan was convicted of manslaughter. He appealed to the Indiana Supreme Court on the grounds that the trial judge had incorrectly instructed the jury that he was obliged to retreat. 14 Erwin v. State, pp. 24–5. 15 Runyan v. State, p. 85. 16 Ibid., p. 84. 17 Many scholars have looked to the Western as a national, or nationalist, mythology. Important work by Henry Nash Smith in Virgin Land: The American West as Symbol and Myth (Cambridge, MA: Harvard University Press, 1970 (1950)), Leo Marx in The Machine in the Garden: Technology and the Pastoral Ideal in America (New York: Oxford University Press, 2000 (1964)),

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Will Wright in Sixguns and Society: A Structural Study of the Western (Berkeley: University of California Press, 1975), and Richard Slotkin in his trilogy represent some of the foundational texts of this line of scholarship. Indeed, the underlying premise of studies of the Western—even highly critical works such as Patricia Nelson Limerick’s The Legacy of Conquest: The Unbroken Past of the American West (New York: W. W. Norton, 1987)—is that the genre has been massively influential in its construction of a national ideology, of articulating and representing the contours of our ‘imagined community.’ 18 Blackstone, Commentaries, p. 223. 19 Although I address the complexities of the castle doctrine exception more substantively in later chapters, it seems important to note here that even though Blackstone—and the English common law tradition—required retreat, exceptions were allowed when an attack occurred inside a home. In short, some historical perspective is important when analyzing self-defense jurisprudence and legislation to ensure that the more aggressive stances codified in ‘Stand Your Ground’ laws are correctly interpreted as the codified culmination of a long tradition, a tradition that has always allowed for exceptional treatment of the use of force inside one’s home. 20 It is perhaps important to note here that this appeal went directly to the US Supreme Court, whereas the other appeals were decided in state Supreme Courts. Beard’s appeal was heard in federal court for two reasons. First, the altercation occurred in Oklahoma, which was then Indian Territory and therefore under federal jurisdiction. Second, the presiding judge in the original trial, Isaac C. Parker, had by this time already established a reputation for enacting decidedly strict justice and harsh penalties, so much so that he has been subsequently remembered as the ‘hanging judge.’ Concerned about the undue power being exerted by Parker, a statute was enacted that allowed appeals to the federal Supreme Court by a writ of error. By 1896, Congress had stripped Parker’s court of jurisdiction and he was forced to retire from the bench. By that time, forty-four of the capital cases brought before the ‘hanging judge’ had been reviewed, of which thirty-one were reversed. For more on the US Supreme Court’s disagreements with Parker, especially regarding self-defense, see David Kopel’s ‘The Self-Defense Cases: How the United States Supreme Court confronted a hanging judge in the nineteenth century and taught some lessons for jurisprudence in the twenty-first,’ American Journal of Criminal Law, 27:3 (Summer 2000), pp. 293–327. 21 Beard v. United States, 158 U.S. 550 (1895), p. 561. 22 Ibid., p. 564. 23 Erwin v. State, p. 191. 24 This public/private distinction is also important in distinguishing between the ostensibly more democratic Western ‘shootout’ occurring in public spaces and the aristocratic pretensions of dueling, which not only sought



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to establish and maintain social hierarchies by restricting participation to members of certain classes, but also did so in private. 25 Edward Buscombe (ed.), The BFI Companion to the Western (New York: Atheneum, 1988), includes an entry on ‘Populism’ which makes this same suggestion. It is important to note here that Slotkin’s broad historical sketch of frontier and Western mythology—collected in three volumes—relies on distinguishing between progressive and populist versions of the myths of American development. This distinction is succinctly laid out in the introductory section of the final volume, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (New York: Macmillan, 1992), pp. 22–6, while twentieth-century interpretations of these myths of development are detailed in the opening six chapters of that volume. 26 Joseph H. Beale, Jr, ‘Retreat from a murderous assault,’ Harvard Law Review, 16:8 (June 1903), pp. 567–82. 27 Ibid., p. 580. 28 Ibid., p. 581. 29 Ibid., pp. 581–2. 30 Ibid., p. 582. 31 Quoted in Brown, No Duty to Retreat, p. 33. 32 Brown v. United States, 256 U.S. 335 (1921). 33 Ibid., p. 343. 34 Ibid. 35 Another case from 1896 set an important precedent concerning the nature of an attack: Allen v. United States, 164 U.S. 492 (1896). Allen v. United States is important for setting a precedent in American self-defense doctrine by establishing that an attack justifiably repelled by mortal force must be a severe one. Affirming the lower court’s conviction, the Supreme Court clearly did not find the attack at issue in Allen—Alexander Allen claimed to have been attacked by Phillip Henson with a stick, after which Allen shot Henson with a pistol—to have been proportional to the killing that followed. Although by 1896 the American legal system was seemingly eager to adopt a stance that would allow a historically and socially significant broadening of the category of legally justifiable homicide, Allen makes clear that this allowance should be further restricted by substantive judgments regarding the reasonableness of the threat. 36 There were challenges tenuously related to self-defense heard in the late 1970s. Most of these cases, however, like that of 1975, Mullaney v. Wilbur 421 U.S. 684, were decided on procedural grounds that had more to do with the due process protections of the Fourteenth Amendment. At issue in Mullaney was whether the prosecution had proved beyond a reasonable doubt all the facts related to a murder conviction, or to a manslaughter conviction. The issue was not whether Maine’s requirement of retreat was acceptable, but whether or not the state’s murder statutes, which placed a large burden of

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proof on the defendant, were consistent with due process. See also Patterson v. New York 432 U.S. 197 (1977), Hankerson v. North Carolina 432 U.S. 233 (1977), McElroy v. Holloway 451 U.S. 1028 (1981), and Engle v. Isaac 456 U.S. 107 (1982). 37 Stanley Fish, ‘The law wishes to have a formal existence,’ in H. Aram Veeser (ed.), The Stanley Fish Reader (Malden, MA: Blackwell, 1999), pp. 165–206; p. 203. 38 For a listing of some of this contemporaneous legislation, as well as a discussion of how the most recent evolution of American self-defense doctrine rests heavily on a readjustment of earlier gender biases, see Jeannie Suk, ‘The true woman: Scenes from the law of self-defense,’ Harvard Journal of Law and Gender, 31:2 (Summer 2008), pp. 237–76. 39 Differing rates of gun ownership in other countries seem always at hand to be played as a trump card for either side in the polarized American gun-control debate, especially when posing a relationship between guns and crime. Those arguing for greater freedoms point to Switzerland or Israel, where gun ownership is quite high and homicide rates are much lower than in the United States. Those advocating for stricter controls point to countries like Canada, where both gun ownership and homicide rates are particularly low. As David B. Kopel has argued at length, however, the use of comparative statistics is often blind to other crucial factors determining crime rates. Contextualizing the gun policies of each nation, taking the crime and possession statistics and juxtaposing them with the social, cultural, and economic situation in each country, is a strategy which makes possible a fuller picture of the impact of guns in each society and reveals the relationship between guns and crimes to be more complex than the polarized American gun debate paints it. See Kopel’s insightful comparative analysis The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? (Buffalo, NY: Prometheus Books, 1992). 40 State v. Gardner, Minn., 104 N.W. 971 (1905), p. 327. 41 Beale, ‘Retreat from a murderous assault,’ p. 580.

3

American gun rights: from national defense to self-defense Over the course of US history, since the right to rebel against an oppressive monarch required the defense of fundamental rights both at home and abroad, guns have shaped how Americans conceive of justified violence. The image of colonists armed with muskets banded together as a citizen militia informs the mythic tale of the revolution against Britain. The rugged frontiersmen using muskets or rifles to defend ‘their’ land and homes against ‘savage Indians’ were depicted as defending fundamental rights, thus providing the growing country with a moral justification for the expansionist policies of Manifest Destiny. The capitalist incentives offered by the nation’s patent system fostered the work of men such as Gatling and Colt, self-proclaimed visionaries and ‘peacemakers’ whose inventions nonetheless spawned ever more lethal firearms.1 Military interventions in sovereign nations abroad have all been promoted as operations carried out ‘in defense’ of people trampled by tyrannical governments ravaging their human rights. What unifies all of these models of American power is the notion of a morally upright citizen or citizen-soldier defending basic rights through gun violence. Put another way, from the eighteenth-century gentleman protesting taxation without representation to the twenty-first-century homeowner worried about burglary, guns have played an integral role in the creation of a uniquely American mode of exercising personal and political power. The rhetorical efficacy of opposition to gun regulations from gun-rights advocates depends on the conflation of the various epochs of this history, constructing an unbroken heritage from the colonial militia to today’s would-be handgun owner. However, both the conception of what an individual with a gun is defending and the

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attitudes of the citizenry toward gun ownership have changed markedly over the course of this history. The American Revolution marked an important transition in the legal administration of private gun possession. Two important traditions from English history are of particular significance to this transition: the long history of gun possession by Protestant English gentry and fear of the king’s army. For several centuries, individual English subjects had commonly possessed a variety of firearms, but during the sixteenth and seventeenth centuries gun possession shifted from a duty—to be used in defense of the monarch—to a right. By the end of the eighteenth century the American revolutionaries had, since the drafting of the English Bill of Rights in 1689, long viewed gun possession as one of the ‘true, ancient, and indubitable rights’ of Englishmen.2 Sir William Blackstone’s Commentaries on the Laws of England considered the right of the people to be armed one of the ‘auxiliary rights’ that would guarantee such primary rights as ‘personal security, personal liberty and private property.’3 Nevertheless, just as the English were familiar with gun possession, so too were they accustomed to gun regulations. English monarchs since Henry VII in the late fifteenth century had restricted possession of firearms in various ways, often through the passage and enforcement of ‘game acts’ that imposed a range of property and ­religious limits on who could own guns.4 For Blackstone, Locke, and many of the legal and political philosophers whose writings so powerfully influenced the founding of the American republic, the right to bear arms as a guarantor of other rights has everything to do with the people’s ability to resist oppressive government by armed revolution. The sixteenth- and seventeenth-century Englishman’s almost pathological, albeit rather justified, fear of standing armies and consequent reverence for citizen militias was based on the abusive power of several monarchs, particularly Charles I, Charles II, and James II. The fear of standing armies, a cornerstone of Whig politics, turned this reverence for a militia into the preferred means of ensuring safety and repelling invasion.5 In short, the Americans’ uprising against King George III was predicated on a desire to shift control of ‘the power of the sword’ from the monarch to citizens. Numerous documents and events central to the American Revolution indicate that the rebellion against Britain stemmed in no small part from disquiet over the monarch’s standing army. For instance, the Declaration of Independence specifically addresses the ‘present King of Britain’ and, in its list of grievances against George



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III, complains of the king’s army no less than four times. Moreover, the objections to an onslaught of taxes were predicated in part on the fact that revenues from these taxes were earmarked to support British troops stationed in the colonies. Finally, it should be recalled here that the spark that, as it were, ignited the revolution was lit by attempts on both sides to seize armaments and military supplies stored in Lexington and Concord. Because they represent the ability to impose one faction’s will on others, guns are always political instruments.6 Whatever it may be taken to mean today, it is clear that the Second Amendment to the US Constitution stands as a testament to a paradigmatic shift in the organization of political power.7 The full text of the amendment, as cited in Heller, reads, ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ The prefatory clauses indicate that a militia is preferable to a standing army. The operative clauses recognize gun possession as an individual right that the federal government cannot take away. To say that a right cannot be taken away does not, however, mean that it cannot be regulated. Despite the vehement cries of many gun-rights groups to the contrary, it is evident that the drafters of this amendment would have been familiar with several gun regulations, many of which were evident in the American colonies’ militia statutes, and that the right of the people to be armed would have been conceived of as a conditional right. The prevailing thought at the time held that a citizen militia would be less likely to turn against its neighbors than an army of professional soldiers. Furthermore, because the Constitution assigns to Congress the power to raise an army, this statement about the importance of militias is meant to limit the power such an army might have against the people of the United States in the event that it would be turned against citizens, a very real fear for American revolutionaries in light of centuries of experience with the English system.8 It is important to stress here again that the amendment’s guarantee of the right to bear arms is indebted to the dual English heritage of reverence for gun possession and aversion to standing armies. Taken together, the amendment’s two clauses serve a dual purpose: they state the importance of militias as a check against a potentially tyrannical standing army and they guarantee the right of individuals to possess guns. The amendment seeks to enshrine both notions in a juridical document that would be immune to the whims of sovereign power. The founding declarations and documents of the American Revolution were

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intended to wrest political power and military might from the arbitrary rule of a monarch and place them in the hands of a democratic majority. Although the issue of individual gun rights has been explicitly argued before the US Supreme Court only six times, the constitutional history of the Second Amendment is mired in biting polemics and nearly antithetical interpretations. Both sides claim the best originalist reading— a method of interpreting the constitution that seeks to base decisions on the original intentions of the constitutional framers. On the one hand, many read the prefatory clauses as dominant. This reading, which privileges the amendment’s reference to a militia, is trumpeted as supporting an interpretation of the amendment as a guarantee of a ‘collective’ or ‘communitarian’ right by those ardently seeking to restrict the individual possession of guns. Others, on the other hand, give the operative clauses greater interpretative weight, a reading that zealously champions the words ‘right’ and ‘shall not be infringed,’ ostensibly supporting an ‘individualist’ interpretation by those wishing to guarantee unrestricted access to guns for private individuals. Some scholars have usefully considered the highly charged politics of the Second Amendment through lenses not strictly circumscribed by legal paradigms. Mark Tushnet, for example, has written of Second Amendment policy debates as part of the so-called ‘culture wars’ between liberals and conservatives, noting that ‘The Second Amendment is one of the arenas in which we as Americans try to figure out who we are.’9 In her study of gun trade shows, Joan Burbick has noted the disproportionate racial distribution of guns in US history, suggesting that ‘the gun in America reeks of white power. Its history is inseparable from keeping arms in the hands of whites and disarming black men to prevent their access to political and economic power.’10 In a similar vein, Richard Slotkin has insightfully read the legal formalism controlling Second Amendment jurisprudence against the larger cultural trend of the Western, which has maintained a hierarchy of private gun violence, an ideology in which ‘the use of violence becomes the legitimate monopoly of a privileged class.’11 What is conspicuously missing on this long and tortuous interpretive road, however, is a consideration of gun rights against the history of American self-defense doctrine. Exploring this interconnection will help to clarify how legal interpretations work as both reactions to, and transformations of, social and cultural mores and traditions. This book contributes to these lines of scholarship by juxtaposing Second Amendment jurisprudence, American self-defense doctrine, and



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the Western genre. This chapter, however, focuses primarily on the intersections of the two legal paradigms. In short, I believe that there is a direct relationship between American law’s approach to defense and its approach to the right to own guns. More specifically, I argue that the Supreme Court cases addressing the Second Amendment can be usefully sorted into two groups based on the prevailing contemporaneous understanding of American self-defense doctrine. The first two cases, United States v. Cruikshank Et Al. and Presser v. Illinois, from 1875 and 1886, respectively, occurred when the American conception of self-defense was moving away from the English common law obligation to retreat and moving toward the notion of standing one’s ground. The next two Second Amendment cases, United States v. Miller in 1939 and District of Columbia v. Heller in 2008, occurred when American self-defense doctrine had become firmly established in American culture generally, if not fully in American jurisprudence.12 In other words, I am arguing here that the split between states that have continued to require retreat and states that affirm the right for individuals to stand their ground is less important than the overall cultural affirmation—a cultural affirmation in which the Western genre, I hope to make clear, is decidedly influential—within this country of a notion of private gun violence as an ennobled form of ‘defense.’ The relationship between American self-defense doctrine and Second Amendment jurisprudence can be explained, I argue, by the transformation of the notion of defense as a general term brought about by American self-defense doctrine’s rejection of the duty to retreat. In the first era marked by Cruikshank, Presser, and the initial paradigm shift in self-defense, the power of the gun in private hands was still very much associated with a collective duty. This is not surprising, because the idea of the Crown’s monopoly on violence that underwrites the English retreat requirement continued to be the dominant paradigm within which private gun ownership and use would be understood. The Cruikshank and Presser cases, in other words, treated guns as a collective issue, and worried about gun violence by worrying over the proper constitution of a citizen militia. Furthermore, the tensions related to Reconstruction in this era, in which there was widespread fear (most viscerally in the South) that the federal government would encroach on state sovereignty, buttresses a concern over defensive gun violence as a communal duty. Understandably, then, the rulings in Cruikshank and Presser privilege the power of the militia and state regulation of gun possession. Eventually, however, when American self-defense doctrine

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shed the duty to retreat—a point marked by Holmes’s definitive statement in the 1921 Brown v. United States decision—the emphasis on the militia and state sovereignty would fall away. The second age of Second Amendment jurisprudence was, then, a period during which individuals could now legally stand their ground in the face of an attack in a growing majority of state jurisdictions. Accordingly, defense ceased to be considered strictly a collective duty and became almost exclusively a personal right. To be sure, the militia has been involved in all Second Amendment cases; given the language of the amendment itself, how could it not be? What is important to note, however, is that once American self-­ defense doctrine superseded the duty to retreat, the emphasis in Second Amendment jurisprudence shifted from regulating militias and balancing states’ rights to considering which types of guns individuals might own. This shift corresponded to the transformation of the notion of defense wrought by American self-defense doctrine whereby defense ceased to be solely a collective duty and came instead to be an individual’s right. Collective defense of a community or a nation by armed citizens acting together against a tyrannical government or an invading power was transformed into a person’s right to self-defense. Although guns had long been the weapon of choice for defense, either collectively or individually, once it was deemed legally justifiable for individuals to utilize mortal violence to defend themselves against other individuals, regulating the types of guns individuals would be allowed to own became the more pressing legal issue. As we shall see below, the Supreme Court decisions in the four cases which directly consider the Second Amendment reveal this shift. The decision in the first case, United States v. Cruikshank (1875), resulted from the prosecution of a group of whites who had massacred at least sixty black men after a hotly contested election in Louisiana in 1873.13 The white mob’s ringleaders were found guilty of violating the Enforcement Act of 1870, which made it a felony for two or more people to conspire together to deprive others of their constitutional rights. Prosecuting the massacre as a violation of the Enforcement Act represented the best possible chance for obtaining a conviction. In short, almost everyone in the town and surrounding areas either explicitly or implicitly supported the  actions of the white mob. Prosecution for murder is the purview of the state, not the federal government, and to say that the state of Louisiana was uninterested in trying white men for killing blacks in the 1870s is a massive understatement. Even arrest proved difficult, as the suspects were helped by sympathetic residents to evade capture.14



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The indictment under the Enforcement Act charged that, in addition to restricting such rights as the right to vote, petition the government, and assemble peaceably, the white mob had conspired to restrict the African American populace’s right to bear arms. The Supreme Court opinion in Cruikshank, written by Justice Bradley, cleared the defendants of all charges, however, asserting not only that the indictment failed to sufficiently specify the crimes at hand, but also that the guarantees of the Fourteenth Amendment applied only to the government and not to individuals. Rather than addressing the massacre at issue directly, or even tangentially by pressing the Second Amendment issue in connection with which the case is often read today, the Cruikshank decision represents a rejection of the federal interventionist policies of Reconstruction. An important precedent for the Cruikshank decision was the consolidated Slaughter-House Cases of 1873.15 These cases came before the Supreme Court in a challenge to a Louisiana public health regulation that effectively granted a monopoly to a meat-processing company. As the company was not located in Louisiana, the decision was interpreted locally as supporting the ‘carpetbagger’ rule then in effect. The first judicial interpretation of the Fourteenth Amendment, the Slaughter-House decision was handed down just days after the massacre at Colfax and represented a narrow interpretation of the privileges and immunities clauses of the Fourteenth Amendment by holding that the protection of many rights was a state issue. Sympathetic to the claims of whites thought to be disadvantaged by federal intervention, Justice Bradley not only aided in the original Slaughter-House suit, but also bitterly opposed the majority decision. Bradley’s role in the Cruikshank decision has been interpreted as a result of his desire to overturn Slaughter-House specifically and his opposition to Reconstruction generally.16 The decision in Cruikshank, then, should be read as a continuation of this opposition. The Cruikshank opinion, rendered in a murder case that was obviously racially motivated, prioritized a narrow interpretation of the delegation of powers over the substantive implications of gun violence. For example, the original guilty verdict was reversed in large part because the original indictment was too ‘vague.’17 In Cruikshank the Supreme Court rejected considering the racial implications of the matter because the indictment had failed to specify as such that race was involved: ‘We may suspect that race was the cause of the hostility; but it is not so averred … Everything essential must be charged positively, and not

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inferentially.’18 Despite the evident racial motivations behind the gun violence at the heart of this Reconstruction-era crime, the Court was so thoroughly determined to limit federal jurisdiction that the issue for which the case is most often read or cited today, gun rights, is but a minor aside in a list of powers and authorities that the opinion sought to reserve to the states. The opinion was dominated by considerations of state and federal authority and abstract discussions of the delegation and limitation of governmental powers. Justice Bradley’s consideration of the right to bear arms indicates the general means by which each of the indictments was rejected by the decision: [The right to bear arms] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens to … the powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police.19

The Slaughter-House cases have since been overturned, and, following McDonald’s affirmation of the Heller opinion’s stringent individualist interpretation, the Second Amendment has now been incorporated. Even though neither of these rulings is thought any longer to represent sound legal interpretation, what is important about the Cruikshank opinion here is that the Court’s strategy of limiting the power of the federal government was not devised solely in opposition to Reconstruction, but also rests on a conception of self-defense that pre-dates the transformation of American self-defense doctrine. This is particularly evident in the last sentence quoted above, which could be usefully paraphrased as ‘the people may not act privately for their own defense; to be legally justified a defensive action must be collective.’ In that era, when defense was still solidly considered a ‘national’ or, in this case, more properly a ‘local,’ duty, the Court’s refusal to punish the local ruling class—despite the heinous nature of their assault—is entrenched in an interpretation of the Second Amendment according to which it offers no protection for citizens against each other but instead protects them collectively against an overreaching federal power. Put another way, the specter of the King’s standing army still loomed large over gun-rights jurisprudence at that time.



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The decision in the next nineteenth-century Second Amendment case, Presser v. State of Illinois (1886), similarly followed primarily juridical procedure rather than broad legal principles and again perpetuated an interpretation of gun possession that would restrict the possession of arms to use in militia service.20 In September 1879, Herman Presser led a march of 400 armed members of a society called ‘Lehr und Wehr Verein’—the Instruct and Defend Association—on the streets of Chicago. He was charged with and found guilty of violating the Military Code of Illinois, which forbade any group other than the volunteer militia of Illinois or US Army troops from associating, parading, or marching as a military organization without the express consent of the governor of Illinois. Presser appealed to the Supreme Court, claiming in part that the Illinois law violated his Second Amendment rights. The Court rejected his claim, upholding the original decision. Citing Cruikshank, the Supreme Court found further that gun possession was guaranteed only against the federal, not the state, government: [the Second Amendment] is a limitation only upon the power of congress and the national government and not upon that of the state … [the right to keep and bear arms] shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has [sic] no other effect than to restrict the powers of the national government. 21

In both Cruikshank and Presser, we see clearly the Supreme Court’s attempts to balance political power within the American legal system in a way that restricts the possession and use of guns by private individuals so as to shore up local governmental authority and curtail an overreaching federal power. This is in keeping with the historical American reverence for local militias over a standing army, a reading that is fully evident in Presser’s rejection of the defendant’s appeal to the federal government seeking to overrule a local militia statute. These decisions were dedicated largely to procedural specifications and jurisdictional issues, the substantive exercise of private gun possession restricted under the aegis of a legal formalism that narrowly interpreted the delegation of authority. That these judicial precedents effectively restricted the use of private gun violence to groups comprising middle-class, Anglo males is an important historical and legal point—a point that we shall take up again in later chapters when I discuss the normative conception of the ideal citizen exercising a right of self-defense. The more important point for my purpose in this chapter, however,

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is that these cases clearly relied on an understanding of defense as a collective duty, a duty to be borne by armed citizens wielding guns in the interest of protecting the nation, the state, or the community. Following these cases, the Supreme Court would deny certiorari to Second Amendment cases for more than fifty years.22 In the interim, American self-defense doctrine would be transformed, granting broad license for private citizens to engage in gun violence in the name of self-defense. In addition to greatly expanding the notion of legally justifiable homicide, this transition was important for gun rights because it marked a shift in the general understanding of defense. Inherited from the English tradition, national defense was long held to be the civic duty of an able-bodied citizen whose duty was to defend the nation. Whether this was against foreign invasion or a domestic uprising, defense on this understanding was a collective exercise as embodied in the ideal of a citizen militia. Presser was witness to this conception, for the case restricted gun rights in a narrow reading of the proper use and makeup of such a militia. By the time American self-defense doctrine was enshrined in Holmes’s 1921 Brown decision, however, defense was perceived decidedly to be a personal matter. The collective duty to act in the common defense was replaced by a right to protect one’s person and private property. There are several possible explanations for this shift. We must consider the declining significance, both politically and militarily, of the citizen militia. Although heralded as a check against oppressive government and an alternative to standing armies, in actual practice the American militia proved to be inadequate as a combat force. Furthermore, the obligation to serve within a militia was seen, throughout the nineteenth century, as an onerous duty. In addition to the decline of the militia, the massive migrations of the nineteenth and early twentieth centuries played a part. As more and more people moved to the urban centers of the North, and as these urban populations became increasingly heterogeneous in racial and ethnic makeup, fighting for a common defense became a hallmark of a more homologous long past era. Furthermore, innovations in industrial technology most certainly played an integral role in the transition. As agrarian labor was replaced by factory employment for an increasingly large portion of the American population, personal, individual concerns came to dominate economic and legal paradigms. Finally, rapid advancements in firearm technology over the nineteenth century not only made the citizen militiaman an increasingly obsolete military figure, but also meant the widespread dissemination of increasingly effective and therefore lethal personal weaponry.



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Occurring after the paradigm shift wrought by American self-defense doctrine, the next case to explicitly consider the Second Amendment, United States v. Miller (1939), rather clearly indicates a shift toward considering gun possession as a personal right even though its ambiguous ruling remained based on a reading of militia statutes.23 In April 1938, Jack Miller and Frank Layton were arrested for transporting a short-barreled shotgun across state lines, thereby violating the National Firearms Act of 1934. The case depended in large part on the length of the shotgun, as the National Firearms Act contained language specifying that ‘firearms’ covered under the act would include ‘a shotgun or rifle having a barrel of less than eighteen inches in length’ and the shotgun in question in the case was less than eighteen inches long.24 Miller claimed that sections of the National Firearms Act violated his Second Amendment rights, and the district court agreed, dismissing the case. Government prosecutors appealed to the Supreme Court, which reversed and remanded, claiming in effect that since the gun in question was not part of standard militia weaponry it therefore could not be protected under the Second Amendment. The decision of the Court to reverse and remand back to a lower court is certainly in keeping with the jurisdictional and procedural focus evident in Cruikshank and Presser, but this Supreme Court decision was based in large part on the type of gun in question. This rhetorical shift from concern regarding the delegation and scope of governmental authority between the state and the federal government to a focus on specifying which guns are legal is, I argue, related to the changed understanding of defense brought about by the judicial transformation of American self-defense doctrine. The Court denied any Second Amendment violation by claiming that the shotgun for which Miller had originally been arrested was not related to militia service: ‘In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.’25 The most integral issue for our purposes here is not the Court’s ambiguous ­ruling—a ruling that some interpreted as severely restricting access to guns by narrowly considering the right of possession to be limited to militia service—but instead the decision’s concern with the specific type of gun at issue. ‘The gun’ is here replaced by a widespread social concern with a particular type of firearm, a concern that would become increasingly

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relevant in a legal system that had lately affirmed the right of individuals to stand their ground in self-defense. The facts of the case bear witness also to developments in firearm technology. In addition to banning ‘sawed-off’ shotguns and rifles with shortened barrels, the Act specifically identified machine guns as weapons of concern. Such guns, subjected to greater restriction and regulation, were used largely by organized crime and viewed widely as ‘gangster weapons,’ not weapons used for hunting or personal protection. The 1934 Firearms Act, which was passed in no small part in reaction to the infamous St Valentine’s Day Massacre in Chicago in 1929, was likewise concerned with specifying and labeling particular types of guns as dangerous firearms. In both the National Firearms Act and United States v. Miller, the concern is largely the identification, selection, and labeling of particular types of guns. This attention to firearm specifications is accompanied in the ruling by dicta detailing earlier militia laws and the arms specifications required therein.26 All these deliberations over the particularities of armaments parallel the shift toward a consideration of personal gun rights and away from subsuming such rights in a collective duty, a paradigm shift wrought by the legal and cultural transformation of American self-defense doctrine. The Western genre’s most popular and influential period, 1930–1960, which parallels this juridical objectification of guns and the sanctification of standing one’s ground, is integral to the cultural and social affirmation of American self-defense doctrine. The ubiquitous personal gun possession depicted in Westerns is rationalized simply as part of the distinctively American nature of the genre. A rather atypical, and admittedly ahistorical, text provides an illustrative example. The 1995 film Dead Man finds Johnny Depp playing William Blake, freshly arrived in an aptly named nineteenth-century industrial dystopia, a town known as Machine. Having sold everything he owns to move to Machine to work as an accountant, Blake discovers that his job has been assigned to someone else. With nowhere else to go he spends presumably the last of his money on liquor, which he offers to share with a woman named Thel (Mili Avital) who sells paper flowers. The next scene finds the two in her bed, and Blake discovers that she keeps a handgun under her pillow. Visibly discomfited by the firearm, Blake asks her why she has a gun. Thel scoffs at the absurdity of his question and answers m ­ atter-of-factly, ‘This is America.’ The camera and staging then reveals a revolver or pistol, a short-range firearm suited primarily for self-defense. This short scene beautifully condenses



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a core assumption that informs the Western’s engagement with personal firearms, the assertion of a one-to-one relationship between guns and Americans. The film’s bizarre cast of characters seems to bear this out; with the exception of Nobody (Gary Farmer), the Native American who guides Blake’s journey after his mortal wound, everybody in this film, and in innumerable Westerns before this one, carries a gun. It is perhaps important to note here that beyond its revisionist ethos, this film is also atypical by placing this gun, and the nationalist justification for its possession, in the hands of a woman. This uncharacteristic version of gun possession, however, is quickly rectified as Thel’s husband enters the room, confronts the two would-be lovers, produces a gun of his own and shoots, killing Thel and fatally wounding Blake. Blake returns fire, missing several times before finally killing his assailant. As in so many other Westerns that feature women with guns, Thel is symbolically punished and literally destroyed for transgressing a gendered hierarchy of gun violence. The woman dispatched, the Western’s traditional drama of masculine gunplay can proceed unimpeded, complete with a justification of self-defense and an ensuing exploration of the racialized hierarchy of gun possession. The highest court in the United States has long failed to address the heart of the matter of gun possession that is enshrined in the Second Amendment. For the crucial political issue of an armed citizenry is not whether they constitute a militia, nor is it what type of gun is possessed. The chief issue is whether or when a citizenry may resort to gun violence as a mode of dispute resolution. When the Court relied on procedural and jurisdictional issues in Cruikshank and Presser, defense as such remained a collective duty. The dicta objectifying firearms in Miller, although bearing witness to the emergent conception of legally justifiable self-­ defense, sidestepped the issue at hand in favor of regulating only certain types of guns. The Supreme Court’s more recent Second Amendment decision in District of Columbia v. Heller (2008), however, came well after the juridical transformation of American self-defense doctrine and the attendant cultural and social affirmation of standing one’s ground that is so often crucial to the Western’s plotlines.27 It is little surprise then that this decision turned not on considerations of governmental powers or militia composition, but on a renewed conception of self-defense. Until 2009, especially strict gun regulations in the District of Columbia virtually prohibited the possession of handguns. The District’s laws also required that any legally owned firearms—such as rifles or shotguns used for hunting—be stored dismantled or with a trigger-lock mechanism,

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rendering such guns virtually inoperable when not actively being used for recreational purposes. Dick Anthony Heller, a policeman, was authorized to carry a handgun while on duty. He applied for a permit to keep a handgun in his home for self-defense. His application was denied, and he sued, claiming that the District of Columbia’s laws violated his Second Amendment rights. The District court dismissed his complaint; the Court of Appeals reversed that decision and the Supreme Court granted certiorari to the District of Columbia’s appeal. Given the long silence of the Supreme Court on the Second Amendment since Miller, the Court’s opinion was eagerly anticipated. Its decision was closely split, and the ruling was accompanied by two dissenting opinions. The majority opinion authored by Justice Scalia and the dissent authored by Justice Stevens are similar in structure but widely divergent in their conclusions. As in much of the scholarly and bitterly partisan debate over the Second Amendment, both opinions devoted considerable time and effort to interpreting the original meaning and intent of the notoriously ambiguous amendment. Again, like much of the extant scholarship and commentary, although both opinions examine the same historical materials, Scalia and Stevens offered completely opposed readings of those materials. Scalia, writing for the bare majority, found that the amendment unequivocally guarantees an individual right to possess guns unconnected with militia service. Stevens, on the other hand, finds that the amendment secures gun ­possession only in connection with militia service.28 The constitutional controversy over the proper interpretation of the Second Amendment falls outside this book’s main line of inquiry. To pursue the question of whether the intention of the amendment’s drafters was to promote militia service through private gun possession or instead to guarantee gun possession in and of itself would divert me from my central purpose. As a literary and cultural critic, I am not attempting to settle a legal issue that has remained contentious for over two hundred years. For my purposes the more interesting part of the District of Columbia v. Heller ruling is, then, the notion of self-defense that grounds Scalia’s majority interpretation. Scalia’s opinion finds the right to bear arms to be categorically an individual right: ‘The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home.’29 Self-defense is here invoked as but an illustration of such a ‘traditionally lawful’ purpose for possessing a gun, suggesting perhaps that



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hunting or sport-shooting could just as easily serve as an example. As the lengthy opinion proceeds, however, it becomes increasingly evident that self-defense is crucial to the majority opinion’s interpretation of the Second Amendment. Blackstone is often quoted approvingly, but never as enthusiastically as when he is invoked to demonstrate that gun ownership represents ‘the natural right of resistance and self-­ preservation.’30 Moreover, this ‘right’ of self-preservation later becomes ‘the inherent right of self-defense [that] has been central to the Second Amendment right.’31 The privileged position of self-defense in Scalia’s rhetoric trumps even hunting, one of the chief reasons traditionally mustered for personal firearm possession. Finally, Scalia’s opinion rests so thoroughly on the importance of self-defense that it becomes the ‘core lawful purpose’ for using a handgun.32 Heller’s majority opinion stands not only as a vigorous individual-rights interpretation of the Second Amendment, but also as an almost angry testament supporting the use of guns in self-defense. Scalia’s opinion is markedly contentious, almost bitterly so. Not content simply to support his interpretation, Scalia’s dismissals of alternate interpretations are scathing, barbed, borderline ad hominem attacks. Thoroughly originalist in basing its ruling on an interpretation of the amendment’s drafting, Scalia’s opinion particularly derides the similarly originalist linguistic interpretations of the dissenting opinion authored by Justice Stevens as ‘grotesque’ and a ‘bizarre argument.’33 Scalia’s chastising takes a somewhat literary and allusive turn when, in another example, he describes Stevens’s interpretation as ‘unknown this side of the looking glass,’ and ‘worthy of the mad hatter.’34 Scalia’s ire extends to the petitioner as well, whom he charges with ‘ignoring historical reality.’35 In a related attack which will serve as a final example, Scalia turns back to Stevens, who has erred this time by being so ‘dubious [as to] rely on such a history’—a history which, at any rate, Scalia claims Stevens ‘flatly misreads.’36 It is clear from this tone that the majority opinion in Heller represents an especially earnest attempt to settle this historically contentious question once and for all.37 By relying so heavily on self-defense, though, the Supreme Court has in the most important respect brought the conversation full circle, back were we started, worrying about what might make private gun violence justifiable. The invocation of self-defense as the ‘sole lawful purpose’ for using a gun at the beginning of the twenty-first century resonates with a broad public fear of violence. High-profile self-defense cases, horrific school shootings in a Columbine, Colorado high school and on the campuses of

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Virginia Tech and Northern Illinois University, the terrorist hijackings and attacks of September 11, 2001, and a succession of military invasions abroad—most notably in Iraq and Afghanistan—not to mention the shooting of Arizona Representative Gabrielle Giffords in 2011 (during which six bystanders were killed)—have significantly increased a public sense that we are ever more vulnerable to random acts of violence. These fears were raised anew in December 2012 with the horrific shooting at Sandy Hook elementary school in Connecticut that took the lives of twenty children and six adults, an incident that rekindled the national debate over gun control laws but at the time of this writing had resulted in no significant new statutory remediation. Renewed calls for gun control measures were raised again after the shooting spree in an Orlando, Florida nightclub in June 2016 took nearly fifty lives. In the face of such vulnerability and insecurity, broadening access to guns still strikes many as a viable solution. Indeed, when several US congressmen were shot at during a practice for a fundraising baseball game in June 2017, commentators were quick to point out that more damage was not done because one congressman’s security agent—who was himself armed—shot the attacker. This access to and legitimization of gun possession within the discourse of the law continues to be restricted to certain firearms. The Western’s glorification of firearms is similarly restricted to certain types of guns, a constraint very much in keeping with several state and federal laws that impose further restrictions on guns not traditionally used for hunting, and a limitation very much in the spirit of the Miller opinion’s almost obsessive concern with the specifications of particular firearms. In the next chapter I return our attention more fully to the Western genre to consider how specific types of guns have been championed over the course of the genre’s history. Notes  1 For more on the importance of the distinctive US patent system to the development of modern-day firearms, see Julia Keller’s Mr. Gatling’s Terrible Marvel: The Gun that Changed Everything and the Misunderstood Genius Who Invented It (New York: Viking, 2008), especially pp. 60–88.  2 Quoted in Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an AngloAmerican Right (Cambridge, MA: Harvard University Press, 1994), p. 115. Malcolm’s impressive study offers a detailed account of this transition in English history. Of particular interest is her thoroughly convincing analysis of the ‘right’ to bear arms, until then viewed as a mixture of social privilege



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and onerous duty, as an invention of the drafters of the 1689 English Bill of Rights. See in particular Chapter 7.  3 Ibid., p. 143.  4 Although ostensibly enforced to control hunting privileges, these game acts were widely used to disarm certain segments of the English population. Of particular importance is the widely protested Game Act of 1671, passed by Charles II. Numerous Militia Acts passed during the seventeenth century by various monarchs were also used to disarm segments of the population, with ‘suspicious’ Catholics often being targeted specifically. Again, see Malcolm’s To Keep and Bear Arms.  5 It is important to note here that this tradition, born of the English Civil War and the Commonwealth period, represents but one strain of English political thought of the seventeenth and eighteenth centuries. As Bernard Bailyn has pointed out in his book, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992 (1967)), p. 51, the influence of the oppositional writings against the established order of governmental powers was far greater in the Colonies than in England: ‘But if these dark thoughts, in the England of Walpole and Gibbon, attained popularity in certain opposition, radical, and nonconformist circles, they had relatively little political influence in the country at large. In the mainland colonies of North America, however, they were immensely popular and influential. There, an altered condition of life made what in England were considered to be extreme, dislocating ideas sound like simple statements of fact.’  6 Richard Slotkin has made this same point in his essay, ‘Equalizers: The cult of the Colt in American culture,’ in Bernard E. Harcourt (ed.), Guns, Crime, and Punishment in America (New York: New York University Press, 2003), pp. 54–67; p. 59.  7 A detailed account of the drafting and ratification of the Second Amendment is well beyond the scope of this chapter. Most of the literature on the Second Amendment contains some account of the amendment’s drafting, although many accounts reflect bias by supporting interpretations of the amendment and associated positions regarding gun rights favored by the authors. For an uncharacteristically balanced account, see David C. Williams’s The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven, CT: Yale University Press, 2003).  8 The Federalist Papers repeatedly insist that the militia is not only the best means of internal policing and defense, but would be able to repel a standing army under the control of a tyrannical federal government. For example, in Federalist 46 James Madison entertains the idea of federal oppression only to indicate the futility of a standing army’s actions against an armed populace: ‘Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would

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not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.’ Available at www. foundingfathers.info/federalistpapers/fed46.htm. Accessed Aug. 8, 2017.  9 Mark V. Tushnet, Out of Range: Why the Constitution Can’t End the Battle Over Guns (New York: Oxford University Press, 2007), p. xiv. 10 Joan Burbick, Gun Show Nation: Gun Culture and American Democracy (New York: The New Press, 2006), p. 27. In addition to Burbick’s fascinating account of the demographics and politics evident at American gun shows in Gun Show Nation, see Wendy Brown’s essay, ‘Guns, cowboys, Philadelphia mayors, and civic republicanism: On Sanford Levinson’s The Embarrassing Second Amendment,’ Yale Law Journal, 99:3 (Dec. 1989), pp. 661–7, which also treats the racial and sexual discrimination evident in facially neutral laws regarding gun violence. 11 Richard Slotkin, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (New York: Macmillan, 1992), p. 160. Legal formalism was an influential method of jurisprudence in the late nineteenth and early twentieth centuries. This method of judicial interpretation sought above all to treat the law as a scientific discipline, whereby judgments stem from the application of analogous formulas. In many ways, this mode of interpretation pushes substantive issues back onto the legislative bodies. Holding that the letter, or form, of the law is the sole province of the judiciary, legal formalism is characteristically blind to substantive implications of laws. Formalism was largely supplanted by the tradition of legal realism, most notably evident in Holmes’s understanding of the law as a matter of lived experience. See Kermit L. Hall’s The Oxford Guide to American Law (New York: Oxford University Press, 2002), pp. 374–81. 12 As the most recent case, McDonald v. Chicago, 561 U.S. 742 (2010), extended the argument in Heller by fully incorporating the Second Amendment at the state level, this case also fits within the second group. 13 United States v. Cruikshank Et Al., 92 U.S. 542 (1875). My understanding of the history behind this case is indebted to Charles Lane’s detailed account of the event and its aftermath, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt, 2008). See also



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LeeAnna Keith’s The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction (New York: Oxford University Press, 2008). 14 The chief agent responsible for bringing the members of the attacking mob to justice, the local sheriff, was in fact one of the leaders of the attack. The US Army and US Marshals were eventually brought in to aid the US Attorney, James Beckwith. Even though historical accounts present a rather bleak picture of the presence and influence of white supremacist groups in the Reconstruction South generally, Colfax County and Grant Parish, Louisiana seems to have been particularly inundated and systemically run by the Klan. As Keith has suggested: ‘Louisiana had distinguished itself as the most difficult and disappointing state in the seething wreckage of the former Confederacy’ (The Colfax Massacre, p. 134). 15 Slaughter-House Cases, 83 U.S. 36 (1873). 16 See Lane, The Day Freedom Died, pp. 192–7; Keith, The Colfax Massacre, Chapter 9. For more on the Slaughter-House Cases, see Erwin Chemerinsky’s Constitutional Law (New York: Aspen Publishers, 2001), pp. 382–90, 452–3. 17 United States v. Cruikshank Et Al., p. 559. 18 Ibid., p. 557. 19 Ibid., pp. 553–4. Emphasis added. 20 Presser v. Illinois, 116 U.S. 252 (1886). 21 Ibid., p. 266. 22 Certiorari is the name for a writ of review or inquiry. In the US appellate system, if a higher court grants certiorari then it proceeds to review, reverse, or remand a lower court’s decision, often with an accompanying opinion which lays out the reasoning and provides further guidance for the lower courts. Denial of certiorari represents a de facto affirmation of a lower court’s ruling. Occasionally, even when the majority on a higher court denies certiorari, dissenting justices may still author opinions explaining why they would have granted it. 23 United States v. Miller, 307 U.S. 174 (1939). 24 Quoted in ibid., p. 176. 25 Ibid., p. 178. 26 For example, the Court’s decision in United States v. Miller quotes at some length the militia laws of Massachusetts that were passed in 1649 and 1784, and a similar New York statute from 1786. The decision also contains an extended quotation from the Virginia General Assembly of 1785 that lists in minute detail the particulars of required militia armaments. 27 District of Columbia v. Heller, 554 U.S. 570 (2008). 28 Instead of focusing on the original meaning and intent behind the drafting of the amendment, the second dissent, authored by Justice Breyer, accepts Scalia’s interpretation but poses instead an interest-balancing approach that would, in the interest of the state, uphold the DC handgun ban.

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29 District of Columbia v. Heller, p. 1. 30 Ibid., p. 20. That Blackstone approved of a retreat requirement when considering self-defense seems, inexplicably, to have escaped Scalia’s notice. 31 Ibid., p. 56. 32 Ibid., p. 58. 33 Ibid., p. 13, p. 18 n. 14. 34 Ibid., pp. 15–16. 35 Ibid., p. 26. 36 Ibid., p. 30. 37 Despite the earnestness and clarity of Scalia’s opinion, the repeal of the DC handgun ban need not necessarily have resulted in the striking down of similar state bans. In simplest terms, the District is wholly within federal jurisdiction, while the other bans and regulations at the municipal level are matters of state sovereignty. Incorporation of the Second Amendment, however it is interpreted, has been an issue since at least Cruikshank, so it was unclear if the Heller decision would result in full incorporation of the amendment. A Chicago lawsuit would quickly provide some clarification. Although the case was initially rejected in the Seventh District on December 18, 2008, the National Rifle Association (NRA) filed an appeal and in its 2009 term the Supreme Court granted certiorari. The 2010 decision, which struck down Chicago’s handgun ban, à la Heller, explicitly incorporated the Second Amendment protections at the state level. The NRA quickly followed by filing several more lawsuits challenging local gun regulations. For my argument here, however, the pivotal moment in my analysis of the entwined evolution of the Second Amendment and American self-defense doctrine remains the Heller opinion’s valorization of self-defense as the ‘sole lawful purpose for owning a gun.’

4

The guns that ‘won the Western’: firearm iconography in Western literature and film Popular forms are frequently repetitive, and they are frequently read almost obsessively, as detective novels, westerns [sic], romances, and pornography are, becoming part of what might be called a diet of reality that returns again and again to the same few motifs so that they might not slip away. Cooper’s great invention led to the yearly crop of Westerns and shoot-em-ups that repeat on and on the fact of killing, which is one of the central, inaugural facts of American life. Repetition is in the service of working through or at least in the service of refusing to forget. All three acts, recognition, repetition, and working through, are features of cultural incorporation. Only a few facts keep on being remembered as who we are and those facts are incorporated and then, after a time, felt to be obvious and even trite. Philip Fisher, Hard Facts1

After tracing the evolution of American self-defense doctrine and American gun rights jurisprudence in the previous two chapters to ground an interpretation of the Western genre, I note here that the 2008 Heller case was issued on the heels of a revival of sorts of the Western. Largely dormant in the wake of the social change forged in the political climate of the 1960s and 1970s, this popular genre has experienced a resurgence in the production of big-budget films by major studios. The genre has also witnessed something of a literary revival since Cormac McCarthy’s much-lauded 1985 novel, Blood Meridian: or The Evening Redness in the West and the commercial success of Larry McMurtry’s Lonesome Dove in the same year. The financial and critical successes of Kevin Costner’s Dances with Wolves (1990) and Clint Eastwood’s Unforgiven (1992) fueled a number of new entries in the genre in the 1990s, such as Posse (1993), Wyatt Earp (1994), Tombstone (1993), and The Quick and the Dead (1995). These successes

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were followed in the next decade by McCarthy’s award-winning novel, All the Pretty Horses (1992), the release of such films as Open Range (2003), Bury my Heart at Wounded Knee (2007, on television), star-studded remakes of 3:10 to Yuma (2007) and True Grit (2010), and the Brad Pitt vehicle, The Assassination of Jesse James by the Coward Robert Ford (2007), not to mention such ‘post-Western’ dramatic films as Down in the Valley (2005). On television, the mini-series Lonesome Dove ran in various incarnations and sequels from 1989 to 1995, joined by Dr. Quinn, Medicine Woman (1993–1998); the 1996 television documentary by Ken Burns, The West; the HBO hit television series Deadwood (2004–2006) and Westworld (2016–); and the FX series Justified (2010–2015), with a contemporary setting but a gunslinging lawman who would have been right at home on the set of any Western. Many of these cultural texts, such as the exploitative Bad Girls (1994), the ill-conceived steampunk film Wild Wild West (1999), the sci-fi crossover film Cowboys and Aliens (2011), Johnny Depp’s ill-advised reissue of The Lone Ranger (2013), and the ‘brat pack’ vehicle Young Guns (1988), are little more than remakes of ‘good old-fashioned shoot-’em-ups,’ while other more self-consciously revisionist works such as the aforementioned Dead Man and The Ballad of Little Jo (1993) represent serious interrogations of the genre’s codes and political stance. What I find most interesting about these works is that despite variations in plot and sentiment, they all invoke the Western’s long-cherished ­representations of justifiable gun violence. Matthew Carter, in The Myth of the Western: New Perspectives on Hollywood’s Frontier Narrative, has suggested that these variations in plot and sentiment informing the genre have not been sufficiently acknowledged by its scholars and critics. More pointedly, The Myth of the Western argues that the commonly held position among scholars of the Western genre, especially film scholars, which holds that the genre has evolved through certain recognizable stages—a formative silent period, a triumphant ‘classical’ period, a self-consciously introspective ‘revisionist’ period, and finally a ‘post-’ period marked by hybridity and pastiche— is false. Carter argues that closer attention to variations within films from a certain period would yield not only more robust readings of Western films themselves, but would also indicate the cyclicality of the genre’s stylistic emphases. Against the thesis of generic evolution, then, Carter argues, finally, that ‘it becomes readily apparent that the [evolutionary] pattern that seems to define the genre progressively disappears, to be replaced by a mosaic of varied narratives that reflect not only different times, but also different attitudes within any given time.’2 Despite



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offering fresh readings of important texts at pivotal moments in the genre’s history, Carter’s argument comes down to what seems to me a rather shallow claim: the Western genre is complex. Most scholars working on the form are well attuned to the falsity of the commonly held notion that ‘if you’ve seen one Western you’ve seen them all.’ To be very explicit, I do not deny the importance of variations in the genre or within specific time frames in the Western’s history. To take but one example of such a variation, Henry King’s cautionary tale, The Gunfighter, and Anthony Mann’s celebratory ode, Winchester ’73, both released in 1950, are indeed rather different Westerns. Nevertheless, I argue in this chapter that Carter’s denial of evolutionary development within the genre cannot hold if we are suitably attentive to the form’s changing representations of gun violence. On the contrary, when we train our analytic lens on the Western genre’s understanding of the sense of ‘justice’ to be delivered from the end of a gun, a progressive teleology of the genre’s evolution does indeed emerge. I argue that the genre has in particular had a progressive relationship with paradigmatic shifts in American jurisprudence and legislation surrounding self-­defense and gun violence. As a supplement to ‘the law,’ the Western has tested the limits of American gun violence and self-defense within an imaginative frame. The relationship is not causal, but rather one of resonance, dissonance, and, perhaps most crucially, continued salience (see Figure 4).

4  ‘Shooting lesson’ with Edward Norton as Harlan and Rory Culkin as Lonnie in Down in the Valley, 2005

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It is hardly debatable that guns have always had a special place in Western iconography. Guns and gun battles are perhaps the most essential feature of the genre, providing its defining image. The name of the genre refers to a certain geographic space—American territory west of the Mississippi—and more often than not involves a distinctive historical setting—the late nineteenth century. Yet this spatial and temporal specificity is not important in the way that guns are—settings may vary but the role of guns rarely does. Cooper’s Leatherstocking novels, for example, are set on the Eastern frontier of the eighteenth century. Ford’s film Drums Along the Mohawk (1939), to take another example, is similarly set in the eighteenth-century East, yet both are commonly recognized as Westerns. Even more common are such recognizably ‘Western’ films as Bad Day at Black Rock (1955), Hud (1963), Down in the Valley (2005), and No Country for Old Men (2007), which are set well into the twentieth or even the twenty-first century. What all these narratives share, despite temporal or geographic divergence from the putative core of generic definition, is a central conflict that is ultimately resolved with guns. When a quickly drawn pistol or a surely aimed rifle does not resolve the narrative conflict, you may have a period piece or a regional study, but you will not have a Western. An early critic of the cinematic Western, Robert Warshow, argued that the Western hero’s gun is the genre’s mode of expressing a ‘certain image of a man, a style, which expresses itself most clearly in violence.’3 Drawing on this important insight, Gunslinging Justice seeks to trace these stylistic imperatives in the Western genre as they resonate with paradigmatic shifts in the American legal system. My aim in this chapter is to outline the shifting emphases within the Western on particular types of guns and particular types of gun violence. For, while the gun has always been important to the Western, the genre’s representations of gun violence have varied over the course of its history. To pick up our weaving metaphor once again, this chapter will chart the changing firearm iconography of the Western genre, the woof within the interwoven fabric of American gun culture. Other critics have pointed out that the genre’s formulaic plots pit a symbolic hero against an equally emblematic villain; the social tensions invoked are rhetorically resolved in the climactic shootout between these adversaries, foes equally matched by their skill with a gun. My approach is unique because I argue that particular types of guns have been coded as emblematic of morally upright and justifiable violence at pivotal moments within the genre’s long history. Over the course of this history,



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two guns in particular and a specific set of firearms skills have worked as cultural icons that, through repetition, have acquired a charged symbolic meaning beyond the contexts from which they first emerged. These two iconographic guns are the rifle and the single-action repeating pistol (the six-gun). Which of these guns figured most prominently in Western iconography at a particular point in the genre’s history depended on whether accuracy or speed was the predominant mark of heroic gun violence. If speed mattered most, the pistol was the heroic weapon of choice; if accuracy was most important, the rifle played that role. I argue that the alternating depiction between the pistol and the rifle as the weapon of choice indicates social, moral, and conceptual changes in the notions of defense and justifiable homicide. In short, the surely aimed rifle symbolizes faith in the nineteenth-century ideal of the progress of Anglo civilization that is tied to the collective action of national defense, while the swiftly drawn pistol symbolizes the promise of an autonomous, self-reliant individual of the twentieth century and that individual’s right to act in his or her own defense. Chronologically, the emphasis on aim embodied by the rifle reigned from Cooper’s early frontier novels until the outlaw heroics of the dime novel supplanted the rifle’s accuracy with the speed of the pistol. The Western has long been in the business of performing the cultural work of making armed Americans, to echo Fisher from the epigraph, ‘obvious, even trite.’ The late nineteenth-century paradigm shift in American self-defense doctrine radically altered the conception of defensive violence. Concomitant with this legal paradigm shift, the Western genre underwent a transition from favoring the rifle of the countryside usually fired at long range to favoring the pistol of towns or settlements in formulaic six-gun shootouts. The symbolic nature of these two weapons, then, must mean something different within both the genre and the larger cultural and social tensions being worked through in the formulaic plots. We shall first look to representative nineteenth-century literary examples to flesh out the difference between the two. The rise of the cinematic Western in the twentieth century represented another moment of change, a change which was to frame the visual iconography of these symbolically charged weapons with something approaching reverence. In the next section of this chapter I argue that the visual iconography of the cinematic Western disciplined the freedom enabled by American self-defense doctrine in the twentieth century, prescribing when, why and, most importantly, how

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an individual might be morally justified in exercising the legal right to kill an assailant. This disciplinary function became more acute once the related juridical paradigms covered in the previous two chapters, American self-defense doctrine and the Second Amendment, together affirmed gun ownership and the utilization of lethal defensive violence as an individual right instead of a collective duty. I will be arguing throughout this chapter that moments of changing emphasis be viewed as moments when popular culture functions not merely to assuage anxieties or expose tensions in a particular social organization, but perhaps more fundamentally to ‘make the unimaginable obvious’ by enacting a set of normative constraints which would supplement the perceived radical freedom to kill effected by the legal transition of American self-defense doctrine.4 The surety of progress and aim: Cooper’s La Longue Carabine James Fenimore Cooper’s series of five novels, collectively referred to as the Leatherstocking Tales, widely considered the first American frontier narrative, was also the first literary home of an iconic American gun. As the country expanded westward during the nineteenth century, so did the frontier and with it the emergent notion of ‘the West.’ While ‘the West’ in the formulaic narratives of the nineteenth and twentieth centuries typically refers to the area west of the Mississippi River, in Cooper’s own time what we now call the Midwest was, if not ‘the West,’ then certainly part of the frontier. Similarly, during the French and Indian War, 1756–1763, the area around Lake George in what is now upstate New York would certainly have been considered a frontier wilderness. What unites each of these locations across this historical span is the conception of the frontier as a space existing beyond the pale of ‘civilization.’ This mythic space, invariably rugged, mysterious, and always promising violence, was the perfect fictional setting offering a ready justification for gun violence. The constancy of the threats posed by the frontier wilderness is an integral aspect of the Western’s justification for gun violence, and Cooper’s Leatherstocking novels vividly demonstrated the potential for dramatic action within this space. Certainly other contemporaneous literary traditions have relied on a foreboding setting, such as Sir Walter Scott’s Waverly novels—the Scottish highlands providing a similarly ominous space for heroic action—as well as a Gothic tradition which



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5  Thomas Cole, Scene from “Last of the Mohicans”: Cora Kneeling at the Feet of Tanemund, 1827

imbued all sorts of locations, such as the stately manor, the creaking house, or even the oceangoing frigate, with a pervasive dread. Beyond literature, the ominous quality of the vast American wilderness was also widely captured by such American landscape painters as Thomas Cole, Albert Bierstadt, and others of the Hudson River School in paintings whose embellished landscapes dwarfed minor characters in scenes suggestive of risk, isolation, and danger (see Figures 5 and 6).5 Cooper’s Leatherstocking series, however, was innovative in using the American frontier chiefly as a space whose very threat would serve as implicit justification for gun violence. The second of the Leatherstocking novels, The Last of the Mohicans (1826), offers this strategy in abundance. Formally, Cooper’s novel alternates between lush descriptions of the landscape and dramatic action scenes. This imagined landscape does more than just set a scene; it works actively within many scenes, foreshadowing coming death. Indeed, the novel’s opening sentence stresses the perilous import of the land: ‘It was a feature peculiar to the colonial wars of North America, that the toils and dangers of the wilderness were to be encountered before the adverse hosts could meet.’6 Invariably dark, ominous, and foreboding, the shadows here are ‘deceptive,’ the

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6  Frederic Remington, The Cowboy, 1902

forests threaten to ‘swallow up the living mass which had slowly entered its bosom,’ the darkness is ‘impenetrable’ as it settles ‘on the plain like a vast and deserted charnel-house.’7 Such a dangerous landscape not only bodes conflict, it also provides a scene wherein seemingly any action would be defensive, a protection of one’s always-threatened self. A depiction of the fall of Fort William Henry during the French and Indian War, The Last of the Mohicans often anthropomorphizes its landscapes, personifying places as a third antagonist among warring parties:



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A heavy breeze swept along the surface of the river, and seemed to drive the roar of the falls into the recesses of their own caverns, whence it issued heavily and constant, like thunder rumbling beyond the distant hills. The moon had risen, and its light was already glancing here and there on the waters above them; but the extremity of the rock where they stood still lay in shadow. With the exception of the sounds produced by the rushing waters and an occasional breathing of the air, as it murmured past them, in fitful currents, the scene was as still as night and solitude could make it.8

The air here breathes, and the scene is made still by the night. The wilderness is hereby personified, less an ominous action setting than a participant in the fray. Should our hero best his adversaries, he must still face the personified landscapes that constantly oppose him. Within such a dangerous, actively adversarial space, the complex histories that precede a conflict are eclipsed; all that remains is a portrait of warring figures, fighting for survival. All that remains, that is, is to differentiate these figures by the way they wage such a war. Conflict is inevitable; how it is fought will separate hero from villain. Cooper’s most important strategy for distinguishing his hero, Hawkeye, from the variously villainous and less properly masculine foils within the novel is to conflate this individual with the gun he uses. In the first of the Leatherstocking novels, The Pioneers, this same protagonist goes by the name Natty Bumppo.9 In The Last of the Mohicans, the second novel in the series, this noble scout who protects, guides, and rescues the Munro daughters over the course of the novel is called by yet another name which refers directly to his gun. The Native Americans allied with the French call him ‘La Longue Carabine’ (the long rifle), and the English name, ‘Hawk-eye,’ is surely evocative of that particular bird’s keen eyesight, the eyesight required for Hawk-eye’s legendary aim. It is perhaps worth noting, finally, that Cooper’s strategy of nominative conflation between his hero and the character’s gun is picked up again in the final Leatherstocking novel, as the eponymous protagonist is once more identified by his gun, the Deerslayer.10 The nominative designation is not the only means by which Hawkeye—or La Longue Carabine—is thoroughly connected with his gun in The Last of the Mohicans. Throughout the novel the action scenes are rendered so that his gun is the agent noun of sentences depicting his killings. In other words, the gun or its bullets, not the man, carry out the deadly action. For example, ‘a fierce yell, blended with a shriek of agony, announced that the messenger of death, hurled from the fatal

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weapon of Hawk-eye, had found a victim.’11 Another example similarly demonstrates the agency given the rifle: ‘the rifle of Hawk-eye slowly rose among the shrubs, and poured out its fatal contents.’12 Because the rifle is the agent noun of these sentences, moral culpability—again, the sentences above describe Hawk-eye killing someone—is removed from the hero. Cooper’s personified landscapes, along with his particular rendering of the rifle or the bullets as the active agent in sentences describing death, both work implicitly to justify Hawk-eye’s killings. Put another way, he cannot ever retreat far enough, for the very walls of the wilderness pose great danger. He is constantly attacked and his rifle seems to do its deadly work on its own. Taken together, these two narrative strategies argue that Hawk-eye’s killings are inevitable; he is, as it were, forced to kill. These strategies certainly work to exculpate him from blame, but more importantly they work to construe Hawk-eye as an agent of inexorable forces. The primary inexorability within the novel is the triumph of Anglo civilization over the threatening landscape and, perhaps most importantly, the Native Americans on it. This argument is made explicit through dialogue between Hawk-eye and the Mohican chief Chingachgook as well as the tribal chief’s lament. Contemporaneous with President Jackson’s Indian Removal Act of 1830, The Last of the Mohicans is imbued with a nostalgic sense of loss over the fate of America’s indigenous population. Although perhaps usefully read as a working-through of social anxieties about Native Americans, the novel works more conspicuously to champion the ‘progress’ of Anglo civilization as embodied by a hero like Hawk-eye, who constantly, anxiously, declares that he is a ‘man without a cross.’13 This insistence on the purity of his blood is matched only by the depictions of the purity of his aim. By stressing not only the technical superiority but also the moral righteousness of Hawk-eye’s aim, the novel urges us to equate the two. In other words, the better man is the man who is better with a gun. Witness the shooting match between Duncan Heyward and Hawk-eye near the close of the novel. Ostensibly a test of marksmanship designed to prove the true identity of La Longue Carabine, the contest is the culmination of the novel’s comparison of the two men, which ultimately judges Hawk-eye superior. The sentences describing each man’s shots posit agency rather differently. When Heyward shoots he is the agent of the action: ‘Raising his rifle with the utmost care, and renewing his aim three several times,



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he fired.’14 When Hawk-eye shoots, however, the action is rendered in the passive voice: ‘The scout laughed aloud—a noise that produced the startling effect of an unnatural sound on Heyward—then dropping the piece, heavily, into his extended left hand, it was discharged, apparently by the shock, driving the fragments of the vessel into the air.’15 That Heyward must carefully aim three times to even come close to the target while Hawk-eye hits the mark with an almost involuntary action attests to the decisive difference in their shooting skills. Hawk-eye’s aim is so sure that he almost automatically, invariably, hits the mark. And although Hawk-eye is the clear winner, the contest is repeated with a more difficult target so as to remove any lingering doubt. The phrasing describing this next shot echoes that of the first. When Heyward shoots it is with careful, deliberate aim: ‘Had his life depended on the issue, the aim of Duncan could not have been more deliberate or guarded. He fired . . .’16 Hawk-eye is more deliberate this time, but when the shot is fired his rifle is again the agent noun of the sentence: ‘The scout had shook his priming, and cocked his piece, while speaking; and as he ended he threw back a foot, and slowly raised the muzzle from the earth. The motion was steady, uniform, and in one direction. When on a perfect level, it remained for a single moment without tremor or variation, as both man and rifle were carved in stone. During that instant, it poured forth its contents in a bright, gleaming sheet of flame.’17 During this shooting match aim, or marksmanship, is clearly the criterion of superior skill. Such accuracy represents the symbolic triumph of the rugged American individual (Hawk-eye) over the agent of imperial monarchical forces (Heyward). The French and Indian War, after all, was a fight between the armies of imperial monarchs over the control of colonial lands. By representing the superiority of his protagonist through his superiority with a gun, Cooper would lay out a formulaic trope that would come to define the Western genre. In this context, however, it is perhaps more important that the heroic rifleman works outside an established hierarchy. As a scout he belongs to no organized force such as the British Army; he is instead an individual whose violence is controlled by his own ethos and morality. Philip Fisher has suggested that Cooper’s emphasis ‘on aim and, with it, personal control, the choice of the moment to fire, the selection of a victim, all points toward a rational and meaningful account of warfare.’18 I argue that Hawk-eye’s sure aim is also symbolic of faith in the rugged American’s ability to utilize gun violence in the interest of a larger community. When Cooper composed these novels barely a

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generation had passed since the American Revolution. The American legal system was still fresh, working to solidify and justify its radical new organization of political power. The constitutional guarantee of gun ownership was both the highest symbol of this faith and the most direct threat to the stability of government. Placing powerful weapons in the hands of the many, each thought to be sovereign and autonomous, posed a great risk of unchecked violence and instability. Cooper’s heroes are indeed killers, but their gun violence is emphatically ‘a controlled violence,’ an image of the power of an individual with a gun that, as Fisher notes, ‘sets limits to violence by means of a personal ethos and not through the agency of an organized society or rule of law.’19 Aim or marksmanship is the embodiment of careful choices, deliberation, and patience, and thus the rifle becomes the perfect symbol with which to ‘civilize’ the American who wields a gun. This tempered gun violence also serves to advance the American enterprise, the spread of Anglo civilization from the East, westward across the frontier. The surely aimed rifle therefore also represents collective action, collective defensive violence. Although Hawk-eye acts as an individual, he kills for the sake of others, he kills to protect agents of this ostensibly progressive march through the wilderness. As such, his disciplined gun violence accords well with the nineteenth-century understanding of defense as a collective duty. As the American legal system expanded during the nineteenth century, so too did its network of mediations and procedural constraints. Even more importantly, the Civil War radically challenged the idea of an American collective. A fractured union—literally at war internally—is hardly a vision of civilized gun violence. Moreover, the close of the war and the failed policies of Reconstruction left many in doubt about the ability of a deliberate, considered collective to advance the interests of individuals, and the continually expanding reach of federal power came to undermine the vision of a sovereign individual who could, without intervention, exercise gun violence justifiably. While the surely aimed rifle of Cooper’s frontier novels would remain an important symbol of controlled, deliberate violence, the speed of the pistol would supplant the rifle as the symbol of heroism in post-bellum Westerns. The swiftness of extralegal violence: the outlaw’s pistol Various ‘Outlaw’ and ‘Bordermen’ series of cheaply produced and widely circulated dime novels represented a shifting emphasis regarding



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the Western’s symbolic gun violence. That these series’ heroes operated either outside or at the edges of a settled legal code demonstrates a sense of public frustration with the American legal system. Cataloging the dime novel tradition, Daryl Jones has noted that, whereas Cooper’s backwoodsman would retreat from the reach of the American law, living always before, beyond, or away from civilization, the dime novel hero ‘stood his ground [and] with a clenched fist, he boldly confronted the future.’20 Jones’s phrasing here is unintentionally illustrative. For what he inadvertently underscores is not just the defiant attitude of the new Western hero, but also the importance of the emergent American self-defense doctrine, which would forever alter the legal and cultural figure of justifiable gun violence by altering the conception of defense. The pistol is an apt symbol of this transformation, particularly the repeating revolver. While a rifle may be more accurate at long distances, making it a more suitable firearm in the countryside, a pistol, which is easier to reload and quicker to put into action, is a weapon well-suited for carrying and concealing when in town. The pistol is more befitting of close, personal confrontations than long-range battles; it is, in short, a perfect gun for self-defense. By the same token, the pistol symbolizes the American self-defense doctrine’s rejection of the English common law obligation to retreat. An obligation to retreat from violent confrontation represents an implicit faith in the legal system’s capacity to redress grievances and resolve conflicts. The American rejection of this obligation, the affirmation of the legally justifiable right of an individual to stand one’s ground and kill one’s assailant, expresses residual doubts about the extant legal system’s ability to resolve conflicts. As a symbol of this rejection, the speed of a quickly drawn pistol perfectly accords with public frustration over the slow, incremental mediations inherent in the American legal system. The Adventures of Buffalo Bill from Boyhood to Manhood (1882), a dime novel written by Colonel Prentiss Ingraham as the first volume in the widely popular Beadle’s Boy’s Library of Sport, Story, and Adventure, resonates with the shifting emphases and rhetorical strategies that advanced contemporaneously with the emergent American self-defense doctrine (see Figure 7).21 This dime novel is, like Cooper’s novels, reverential regarding guns and similarly conflates firearms with heroes. Most explicit in this tale of ‘Deeds of Daring, Scenes of Thrilling, Peril, and Romantic Incidents in the Early Life of W. F. Cody’ is the consistent glorification of Cody’s skills with multiple guns: ‘With demoniacal yells they [a band of Native Americans] came on once more, and once more the

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7  Cover image, Adventures of Buffalo Bill from Boyhood to Manhood, 1882

yagers [rifles of a particular type] opened, and then were thrown aside for the rapidly firing revolvers which did fearful execution’; ‘Bill turned upon him, and a shot from his revolver got him another scalp.’22 In each of the above examples, rifles are employed but Cody resorts to pistols to definitively settle the conflict. Even when the rifle alone is used, the speed of the repeating rifle is emphasized, not deliberate aim: ‘Buffalo



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Bill was seen to raise his rifle, and a perfect stream of fire seemed to flow out of the muzzle, the shots came in rapid succession.’23 Whether with a rifle or, more often, with a pistol, it is Cody’s speed that wins the day. Like other dime-novel heroes of this time, Cody always employs gun violence in self-defense. He never shoots first; his shots are always ‘in answer’ to another’s shots or provocation: ‘instantly, however, Billy returned the shot’; ‘Buffalo Billy stood still, and waited until he had received four shots, all coming dangerously near, when he suddenly threw his revolver to a level and drew trigger’; ‘Bill instantly returned the fire, and his quick, unerring aim sent a bullet into the man’s brain.’24 The rhetoric of defense in which the author couches descriptions of Buffalo Bill’s killings echoes at a discursive level the merits of self-defense as articulated in cases that collectively compose American self-defense doctrine. Such killings accord with the disposition of a ‘true man’ envisioned in Erwin v. State and ‘the tendency of the American mind’ articulated in Runyan v. State.25 As a legal paradigm was beginning to shift, then, the cultural work of formulaic repetition helped to solidify and justify this transition. We can glimpse similar strategies at work in another text from 1882, The Authentic Life of Billy, the Kid, the tale of the notorious outlaw William Bonney, better known as Billy the Kid.26 Written by the man infamous for having killed ‘the Kid,’ Sheriff Pat Garrett, this tale is dedicated to stylizing the Kid’s abilities with a gun.27 Garrett paints Bonney as the quintessential Western ‘quick-draw’ hero, wielding lightning-fast reflexes and steady aim. An early scene in which Billy confronts a gambler who has stolen from him and accused him of cheating makes this clear: The insult came as expected. Billy’s pistol was in the scabbard. Martinez had his on the table and under his hand. Before putting his hand on his pistol the warning came from Billy’s lips, in steady tones: ‘Jose, do you fight as bravely with that pistol as you do with your mouth?’ and his hand fell on the butt of his pistol. And here Billy exhibited that lightning rapidity, iron nerve, and marvelous skill with a pistol, which gave him such advantage over antagonists, and rendered his name a terror, even to adepts in pistol practice.28

Stylistically, many of these descriptions share the metonymic conflation evinced in earlier texts. In many of these scenes, the agent noun in the sentence is the gun: ‘amidst a shower of bullets his revolver again belched forth a stream of death-laden fire’; ‘twice only, his revolver spoke, and a life sped at each report.’29

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Garrett proclaims that his novel was ‘inspired by an impulse to correct the thousand false statements which have appeared in the public newspapers and in yellow-covered, cheap novels.’30 The standard embellishments of the many ‘cheap yellow paperbacks’—i.e., dime novels—are, however, continued in his own account. Garrett’s text clearly exaggerates the Kid’s unparalleled ‘quick-draw’ pistol skill. Part of the allure of this gunslinging outlaw and his penchant for violence is his preference for ‘solving’ conflicts with a gun as opposed to undergoing the slow, mediated process of American legal processes. The violence of the gun is more personal, more direct, and above all, speedier than American law. The quick-draw gunslinger epitomizes this sentiment. It would be tempting to read such an account as anathema to the American legal system, for William Bonney is romanticized here as a heroic outlaw, somewhat of a ‘“good” bad guy.’ It is important to note, however, that Garrett’s text, along with other ‘outlaw’ tales, are not ‘anti-law.’ In other words, although he commits what may be deemed crimes according to American law, Billy the Kid is shown to be honorable, charitable, loyal, and possessing a host of other qualities that would distinguish him from the stereotype of a villain. Although the hero’s gun violence often operated outside the procedural framework of American law, it predominantly supported values and ideals—such as self-defense, the expansionist policies of Manifest Destiny, the pursuit and protection of private property, and a racialized hierarchy—that were central to the growth and solidification of the American legal system. The new emphasis on speed and the glorification of the pistol marked a pivotal point in the genre’s evolving representations of gun violence. Importantly, however, at this time racial representations also shifted dramatically. A racialized hierarchy is the other clear rhetorical emphasis in this period, and worked alongside the glorification of the pistol to link superior weaponry with the moral superiority of Anglo culture. Beyond the very real historical fact that such superior firearm technologies as the repeating rifle and revolver provided a crucial military advantage in nineteenth-century campaigns against Native Americans, the mythical Western hero’s gun violence is represented as controlled, disciplined, and thus superior to the reckless violence of ‘savage’ Indians. The differences between representations of Native Americans in dime novels such as The Adventures of Buffalo Bill or Garrett’s The Authentic Life of Billy, the Kid and Cooper’s novels indicate this shift. The Native Americans in Cooper’s world were involved in several complex military campaigns with varied allegiances; they were, accordingly, complex characters



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evincing the full range of human emotions and motivations. From the noble and passionate Uncas to the wise Chingachgook to the malicious and fiendish Magua, Cooper’s Mohicans offers more than a stereotype of reckless violence. This single type, however, is consistently employed as a foil in late nineteenth-century Westerns. The Adventures of Buffalo Bill paints a portrait of a good white son defending himself against merciless red ‘savages’ who seem ever given to ‘wild’ cries and whoops. Similarly, The Authentic Life of Billy, the Kid includes an account of ‘three blood-thirsty savages, reveling in all this luxury and refusing succor to two free-born, white American citizens’ who are killed by the Kid.31 The account is brief and of seemingly minor concern other than to catalog the Kid’s numerous crimes, for Garrett concedes that ‘if anything was known by the authorities, of the Indian killing episode, nothing was done about it. No one regretted the loss of these Indians, and no money could be made by prosecuting the offenders.’32 These representations of Native Americans ought to be read as ameliorating the nation’s growing anxiety over its role in removing an indigenous population.33 Moreover, this rhetorical strategy ought to be read as subsuming what was in fact a rather complex moral issue into a clear-cut adventure tale wherein a ‘hero’ using guns could kill several Native Americans without moral culpability. Finally, taken together, the conflation of superior guns and heroism juxtaposed with the stereotyped portraits of Native Americans in late nineteenth-century Westerns further demonstrate the symbolic import of the gun as an icon of the progress of Anglo civilization. This racialized hierarchy of justifiable gun violence, whereby the good-guy gunman was almost invariably Anglo, would remain an important element at the core of the Western genre’s representations of guns. The next salient development in the genre, however, would center not on Anglo dominance but on gender dominance. For the early twentieth-century Western novels were far more explicitly concerned with representations of Anglo masculinity. The quickly drawn pistol was readily adaptable as an emblem of decisive masculine confrontation. As with the nineteenth-century texts, these works would continue to present gun violence in ways that, for all their seeming excess, worked to temper and discipline the radically disruptive potential of armed individuals. Decisive masculine action: pistols vs parasols In West of Everything, Jane Tompkins argues that gender dynamics represents the most central, and for her the most influential, feature of the

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Western. She holds that, historically, the genre emerged as ‘a reaction against a female-dominated tradition of popular culture.’34 Owen Wister’s seminal Western novel, The Virginian (1902), provides a clear example of how the pistol came to symbolize gun violence as a presumably masculine mode of resolving conflict.35 As Tompkins has pointed out, the narrator continually works to demonstrate that the Virginian, radiating inner nobility, is bound by a code of honor that was somehow superior to the democratic values and meditated procedures embodied in Molly’s feminine sentiments in support of the American law. I cannot overstate the impact of this characterization on the genre, and perhaps on the whole of twentieth-century American culture, and I therefore explore it further in the book’s remaining chapters. Indeed, contra Carter’s refusal of an evolutionary trajectory within the Western genre, my reading of the genre’s resonance with the progressive development of American jurisprudence suggest that the genre’s continued saliency has had much to do with the ways in which the Western has accommodated changes in its imaginative representations of justifiable gun violence, changes that have allowed for more, and more varying, types of individuals beyond the Anglo male hero to perform the role of the heroic gunslinger. My contribution to the examination of gender relations within the genre here, however, is more directly concerned with how Wister’s novel works to control the hero’s gun violence by juxtaposing his reluctant masculinity with the decisive use of his pistol. The Virginian’s reticence is most evident in his conflicts with the characters Steve and Trampas. The narrator elaborates the ‘natural morality’ of the Virginian’s honorable defense of Molly when Trampas claims she’s been too liberal with her affections: ‘He [the Virginian] had championed the feeble, and spoken honorably in meeting, and according to all the constitutions and bylaws of morality he should have been walking in virtue’s especial calm.’36 Commenting early on that ‘equality is a great big bluff,’ the Virginian consistently opts for individuality and self-reliance over a more egalitarian ethos.37 The novel posits Molly’s concern with the rule of law as a silly feminine feeling, championing gun violence instead as a more masculine mode of dispute resolution. Consolidating trends evident in earlier works, extralegal violence is defended in The Virginian as morally upright and justifiable provided it serves a larger societal aim. When the Virginian lynches his former friend, Steve, for cattle rustling, the ‘civilizing’ goal of this act is nominally the protection of private property. This hanging is justified by his employer, ‘Judge’ Henry, who was once ‘a staunch servant of the



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law’ but is now ‘invited to defend that which, at first sight, nay, even at second and third sight, must always seem a defiance of the law more injurious than crime itself.’38 In defending the Virginian’s hanging of the cattle rustlers to Molly, ‘Judge’ Henry evokes a combined appeal to the absence of law in Wyoming and to the supposedly ‘natural’ principles of the juridical organization of power as a social contract, whereby power stems from the people. ‘Judge’ Henry is clearly harkening to a democratic ethos whereby controlled violence can serve to advance the interests of a larger community.39 Here we see evidence of an appeal to natural, inalienable rights and a social contract that underlies the American legal system. The justification for extralegal modes of dispute resolution on the Western frontier, a place seemingly forever beyond the scope of the American law, has long been fundamental to the genre. Wister’s novel stands out, however, for the way in which it posits this capacity for decisive extralegal violence as the marker of manliness. The Virginian and Trampas have been at odds throughout the novel. Reluctant to fight unless he must, the Virginian consistently triumphs through his superior wit in the face of Trampas’s continual assaults and insults. The many scenes in which the Virginian ‘wins’ battles against Trampas without recourse to violence serve to exculpate him when he does finally kill Trampas, a strategy that recalls the defense rhetoric used to justify homicide we saw at work in The Adventures of Buffalo Bill. For although the moment is put off for several hundred pages, it must eventually come, and when it does it forms the climax of the novel. Despite the Virginian’s reticence, the novel clearly argues that he must ultimately face Trampas not with jokes and wit, nor in a court of law, but in a kill-or-be-killed confrontation involving direct gun violence. When this moment arrives, the narrator’s appeal to gun violence as a masculine mode of dispute resolution is explicit in the build-up to the showdown with Trampas: ‘It had come to that point where there was no other way out, save only the ancient, eternal way between man and man. It is only the great mediocrity that goes to law in these personal matters.’40 In the face of Molly’s ultimatum and admonitions that he need not face Trampas, the Virginian can only state, twice—as if it plainly explained the necessity of his actions and justified his ­killings—‘Can’t yu’ see how it must be about a man?’41 These statements from the narrator and the Virginian trumpet gun violence as not only the last recourse when resolving persistent animosity but also as the properly masculine mode of dispute resolution.

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The climactic shootout with Trampas is carried by suspense, threats, and inner dialogue more than by explicit action. The actual shooting is depicted obliquely; a matter of winds and replies more than of guns and killing: ‘a wind seemed to blow his sleeve off his arm, and he [the Virginian] replied to it, and saw Trampas pitch forward. He saw Trampas raise his arm from the ground and fall again, and then lie there this time, still. A little smoke was rising from the pistol on the ground, and he looked at his own and saw the smoke flowing upward out of it.’42 This indirect representation of the killing of Trampas, the rhetorical trope of gunshots fired by the hero in ‘response,’ sanitizes the Virginian’s act of homicide. Combined with the consistent depictions of the Virginian’s reluctance to kill Trampas, and the novel’s explicit statements positing violence as a more masculine mode of dispute resolution than legal redress, this indirect description of the actual shootout not only demonstrates the ‘manliness’ of the Virginian’s actions but also leaves him devoid of blame for a premeditated killing. The pistol here is quick, decisive, and blameless—a hero’s weapon not unlike a chivalric knight’s sword. Guns in Hollywood’s West While Cooper’s Leatherstocking Tales have been held up as the Ur-text of the Western genre, Wister’s The Virginian has long been hailed as the first fully realized version of the formula that would dominate American culture for much of the twentieth century. As I have attempted to demonstrate, the representations of guns within such texts has had much to do with evolving notions of character, morality, and above all justifications for the violence. Cooper’s novels depict many battles, but all the killings follow a clear moral trajectory perfectly symbolized by the surely aimed rifle. The Virginian, on the other hand, defers action in favor of suspense, leaving the gun violence to the final, decisive climax won by the quickly drawn pistol. Although the long-awaited climactic battle would become an integral part of the generic formula, the two symbolic weapons would, however, retain many of the same connotations in Western films. In short, the rifle would continue to symbolize moral surety and the pistol would continue to be equated with decisive action. A variety of social, political, economic, and technological mechanisms developed during the late nineteenth and early twentieth centuries that were crucial to the evolution of firearm iconography in cinematic Westerns. These interrelated changes, loosely yet usefully coalescing



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under the Foucauldian rubric of ‘bio-power,’ were primarily engaged with the quantification and objectification of masses of people. Social and political developments that have informed this transition include the rise of modern nation states along with the concomitant rise of nationalisms. Economic and technological developments include the growing importance of statistical analyses of all kinds—insurance amortization tables and census data are but two powerful examples—the solidification of management as a scientific discipline, the growth of the publication industry that brought widespread distribution of newspapers and a growing ‘national’ literary culture. On this changed landscape, early Western novels and films provided an outlet for fantastic identification. The newly emergent corporate man and the alienated worker of the fully industrialized nation were encouraged to readily identify with the Westerner’s mastery of a set of specific skills.43 Although far removed from the dangers of any ‘lawless’ frontier, machinists and accountants alike could see themselves in the Western gunslinger’s exercise of control over violence. For whether performed with a rifle or a gun, the Westerner’s stylized violence is always an issue of control, of discipline, and of professionalism—traits easily transferrable from the mythic space of the Western to the shop floor or the boardroom. As it is with literary examples from the nineteenth century, so the cinematic Western’s valorization of firearms is restricted to particular guns, the rifle and the pistol, although the pistol would dominate the silent period. The first filmic Western of any kind, The Great Train Robbery (1903), features a theft, outlaws, and hot pursuit, much like the earlier dime novels. Also explicit in this early film is a fascination with the decisive action of the pistol: the separate reel of the man shooting at the camera was a big part of the sensation caused by the film’s exhibition and a chief attraction. Buster Keaton’s early send-up of the genre in Go West (1925) also glorifies the personal handgun. Early in the film, it is a gun that stimulates the character’s idea of following Horace Greeley’s maxim to ‘Go West, young man.’ A comic parody of the genre’s tropes, Go West still trades on the iconic textuality of the handgun as the symbol of ‘the West.’ The silent films of W. S. Hart provide interesting examples of the pistol valorized as a symbol of decisive action. As an indication of the genre’s variation and variety within specific periods, it is important to note that as an iconic star of early cinema, Hart portrayed a more complicated version of the Western hero than his contemporary Tom Mix.

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While Mix played characters that epitomized moral virtue Hart, even armed with a pistol, often portrayed more complicated roles. Ensconced in fancy, even frilly, costumes, Mix played the white-hatted hero while Hart epitomized the dime novel’s portrayal of the ‘“good” bad guy.’ His outlaw status, I would suggest, is made clear even before it is stated in the intertitles or established through various plot machinations. Simply put, we know Hart’s character is an outlaw, a man of questionable moral compass, because he wears two guns. While a single pistol had come to represent decisive action, two pistols connote recklessness. As the twin pistols in the hands of a reformed outlaw suggest, Hart’s stories were often explicitly preoccupied with justifications for gun violence. Hart plays the role of Black Deering, a reformed outlaw, in The Toll Gate (1920). Although Deering will eventually use his pistols for good, the film consciously portrays him as undergoing a transformation from his earlier vengeful ways, redeemed by the affections of a woman and her son. Blue Blazes Rawden (1918) is an even more complicated portrayal of gunslinging heroism because it is mainly the story of a man who must live with the consequences of having killed another man. Although Rawden was sufficiently provoked, his action was not quite defensive; he was robbed, but not attacked. The film thus exhibits anxiety about this killing and Hart’s character is a man tortured by having to cope with, and lie about, his role in the death of another man. Hart’s legacy within  the genre is perhaps more important in demonstrating what could, in the end, be ‘good’ about his various bad-guy characters. Much like the novels that were Hart’s precursors and the explosion of the classic Western that was to follow, gun violence in his films is heroic, in short, because it coheres with an audience’s sense of right and wrong. One final example from Hart may help demonstrate this point. Hart’s last film, Tumbleweeds (1925), tells the story of the opening of the Cherokee Strip in Oklahoma territory to homesteaders in 1889. Formerly cordoned off as reservation land, this vast territory is set to be opened to homestead claims; the date having been set in advance, legions of eager would-be landowners arrive in anticipation of their chance at claiming a tract of land. To ensure that the opportunity for such claims is equally available to all comers, the army is brought in to patrol the border, with orders to arrest anyone who embarks early—derogatorily called ‘Sooners’—in hopes of gaining an edge on the competition for valuable land. Although the homesteaders are viewed suspiciously by the cowboys as threats to the free-roaming cowboy way of life, the true villains here are two land speculators.



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The wickedness of the speculators is made clear in the film not only by their attempt to frame Hart’s character, Don Carver, as a ‘Sooner,’ or just because they have murdered an army sergeant, but also because they themselves have ventured early into the territory in search of water, a most invaluable commodity in this setting. That they are land speculators searching only for the most valuable land to sell off to the highest bidder and not homesteaders seeking to use the land themselves represents a further stain on their characters, for the film suggests that the control of water rights by outside interests could only disrupt the ostensibly more natural use of the land by independent homesteaders. Carver’s dispatching of these speculators with his guns is portrayed as a morally sound and justifiable act because they have cheated and threatened the sacrosanct American value, much indebted to Locke’s formulation of land rights as stemming from use and improvement, of individual economic opportunity that the race for land represents. Released just a few years after Justice Holmes’s definitive statement on American self-defense doctrine in Brown v. United States (1921), the film is significant in that it does not depict Carver as physically threatened by the speculators.44 When he kills them as much for their unscrupulous land-grabbing as for their attempt to have him detained to prevent him from exercising his right to participate in the homestead race, the film presents his actions as honorable and heroic, an exercise in gun violence to defend basic rights and liberties. In Tumbleweeds, as in much of the genre, the hero’s gun violence supports an entrepreneurial ideology that informs the core of American society. This entrepreneurial ideology is but one of the many justifications that Westerns would utilize in their portrayal of heroic gun violence. As the genre evolved with the full-length sound format of classical Hollywood, cinematic Westerns began to mix or alternate the emphasis on the rifle and the pistol. The rifle is typically involved when there is a question of morality. Winchester ’73 (1950) exemplifies the conflation of morality and the rifle as it lionizes its hero as a paragon of moral virtue. Anthony Mann’s film stars James Stewart as Lin McAdam, a cowhand who wins a remarkable rifle in a shooting contest in Dodge City. As the film explains, the rifle is ‘one of a thousand,’ a gun so perfect that it ought not to be sold but rather granted to a deserving man. McAdam’s chief rival in this contest with many entrants is a man named Dutch Henry Brown (Stephen McNally). The shooting match is an extended affair, involving several rounds, but eventually the prize is awarded

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8  James Stewart as Lin McAdam in Winchester ’73, 1950

to McAdam. As the shooting match plays out we learn that McAdam and Dutch Henry Brown were taught how to shoot by the same man; indeed, they both exhibit the same technique—quickly pulling the rifle up to eye level and immediately firing, so sure of their marksmanship that aiming and firing are seemingly one action (see Figures 8 and 9). This gunplay surely recalls the skills exhibited by Cooper’s Hawk-eye. It is also suggested during this shooting match that Dutch Henry Brown is less than honorable; McAdam accuses him of murdering a man, shooting him in the back. The next scene begins to confirm this hint, as Brown steals the rifle from McAdam, and a good deal of the remaining plot is dedicated to further demonstrating McAdam’s moral superiority over Brown, even as it winds toward a revelation that McAdam and Brown are actually brothers. Note here that, while they have been taught the same shooting ­technique, McAdam is a slightly better marksman; he not only wins the contest, but in the film’s climactic confrontation between the two he prevails over Dutch Henry Brown through his superior ­marksmanship— even though Brown is firing the prized rifle. McAdam’s advantage in marksmanship is underwritten by the film’s sequence of scenes in which



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9  Stephen McNally as Dutch Henry Brown in Winchester ’73, 1950

he demonstrates his moral superiority to anyone else temporarily possessing the rifle. He is courageous, chivalrous, honorable, and so on. In short, the film presents McAdam as a better marksman than his rival, Dutch Henry Brown, because he is a better man. The moral appeal in this film relies on an ambiguous conception of right and wrong, often subsumed by amorphous appeals to ‘nature’ or ‘right.’ For instance, the film’s love interest, Lola Manners (Shelley Winters), futilely attempts to prevent McAdam from pursuing Dutch Henry Brown, arguing that McAdam would thereby become a murderer. McAdam’s partner replies, ‘It was Dutch who killed his father, so it’s right for him [Lin McAdam] to go, totally right because Dutch Henry is Lin’s brother.’ As is common throughout the genre, the appeal to ‘Natural Law’ here is as explicit as it is ill-defined and underexplored.45 Nonetheless, the triumph of the ethically upright and honorable McAdam over the villainous Dutch Henry Brown is carried by a series of visual and rhetorical tropes that trade on the connotations of the rifle as symbolic of moral surety. The hierarchy of gun use in Winchester ’73 is explicit from the start. Immediately following the opening credits, an intertitle appears: ‘This

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10  ‘The Gun that Won the West’ intertitles from Winchester ’73, 1950

is a story of the Winchester Rifle Model 1873, “the Gun that Won the West.” To cowman, outlaw, peace officer, or soldier, the Winchester ’73 was a treasured possession. An Indian would sell his soul to own one … .’46 The racialized hierarchy of gun violence evident here is twofold (see Figure 10). First, the reference to ‘winning the West’ calls up the ­nineteenth-century narratives of Manifest Destiny, which employed ‘Natural Law’ and no small amount of racist pseudoscience to justify the removal and near-genocide of Native American populations by Anglo settlers and the American governmental system. Second, the idea of an ‘Indian selling his soul’ to own a Winchester hearkens back to ­widespread ­nineteenth-century state and territorial statutes that barred the sale of guns and ammunition to Native Americans. The listing of possible owners of this ‘treasured possession’ is also illustrative. To include ‘outlaw’ but exclude ‘Indian’ suggests not only that Native Americans are completely disregarded in any appeal to a ‘natural’ morality or ethics that underlies ‘Natural Law,’ but also that even within the putatively democratic and egalitarian American legal system an outlaw can be included whereas an Indian—on whichever side of the law he or she might be deemed to act—cannot.



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Winchester ’73’s hierarchy of racialized gun violence is not limited to this opening intertitle. Indeed, the film’s main subplot involves the sale of the prized rifle by an Indian trader—treated with open contempt by all—to a local chief. The sale of the gun to an Indian is made an especially despicable action by several references throughout the film to the massacre of Custer’s men at Little Big Horn. Implicitly, it is suggested that to sell a gun to Native Americans is bad enough, but to do so when they are rising up against the US army is an especially heinous act. Furthermore, the film also invokes a standard Western trope of a woman reserving a final bullet in a gun—with which to commit suicide lest she fall into the hands of the rapacious ‘savages’—during the extended battle against the Native Americans which ends this subplot. This is a common trope seen in numerous Westerns. The idea is usually unspoken, a matter of hard looks and suggestive stares. Another prominent example of such a representation occurs in John Ford’s much-celebrated 1939 film, Stagecoach, when the Southern gambler, Hatfield (John Carradine), prepares to shoot the symbol of Anglo feminine gentility, Mrs. Lucy Mallory (Louise Platt) lest she fall into the hands of the attacking Apache. The prohibition against selling guns to Native Americans is another common trope; The Comancheros (1961) spends a great deal of screen time worrying over this very issue. The film’s representation of Native Americans is not at odds with the moral argument forwarded in the main plot, or with its reification of the rifle as a symbol of moral superiority. In fact, the moral and racial components of gun violence taken together argue that only an upright Anglo man can be trusted to utilize gun violence as a mode of dispute resolution instead of in service of criminality or tyranny. As Richard Dyer has pointed out in his brief discussion of the Western genre: the greatest threat in most Westerns comes not from the native peoples or Mexicans but from within, from bad whites. This does not, however, tarnish the white project. To make non-whites the greatest threat would accord them the equivalent of will and skill, of exercising spirit, which would make them the equivalent of white people. It is, besides, part of the genre’s realism to acknowledge the variation in white people; that is, the ways in which some white people fail to attain whiteness. Bad whites in Westerns are often associated with darkness, either in the iconography of black and white costuming … or in their association with non-white Others, going native with Indian women, hanging about in Mexican bars and so on. The Western expunges such darkly coded bad apples the better to celebrate the struggle for whiteness.47

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Much as the representations of Native Americans in nineteenth-century texts addressed contemporaneous anxieties over the treatment of indigenous populations, so Winchester ’73’s racialized hierarchy of gun violence not only tempered the potential for personal violence under the rubric of American self-defense doctrine, but also assuaged fears regarding the patent inequality of segregation and the growing discontent of the African American population during the 1950s. The rifle connotes moral, technological, and racial superiority in other cinematic Westerns, including Springfield Rifle (1952), Joe Kidd (1972), Vera Cruz (1954), Jeremiah Johnson (1972), and The Comancheros. In addition, the television series The Rifleman (1958–1963) depicted the exploits of a single father. The eponymous hero’s rifle serves as more than a weapon or a tool for his various good deeds; it is a symbol of the righteousness of his struggle to raise a son alone on the frontier. In these and other films the rifle serves as an icon, a rich signifier of heroic morality. The pistol, however, came to dominate films in which the plot and character motivations explicitly revolve around the hurdles to ‘justice’ maintained by the tortuous procedures of the American legal system. In other words, in films in which the hero’s gun ultimately resolves conflicts that cannot be resolved by the incremental mediations of lawyers and the law, that gun is more often than not a pistol. The pistol, then, is reified as a symbol of efficiency, speed and, above all, the personal resolution of conflicts. In many of these films, as I noted in the Introduction, the administration of the procedural requirements of American law are depicted as an explicit obstacle to ‘justice,’ to the audience’s sense of right and wrong. Constitutional guarantees of a trial, evidence, and legal representation are portrayed as being ‘in the way,’ too slow, unavailable, and incapable of dispatching the villainy terrorizing the citizenry of a small town, ranch, farm, or camp. High Noon (1952) provides a perfect illustration of this emphasis on the obstacles ‘the law’ throws in the way of ‘justice,’ as well as the symbolism of the pistol. As High Noon opens, Marshal Will Kane (Gary Cooper) is marrying a Quaker, played by Grace Kelly, who has prevailed on him to renounce violence—it’s against her religion, after all—and step down as marshal to run a store. A man Marshal Kane had recently helped send to prison has been paroled and is returning to town, presumably to live up to his promise to exact revenge against Kane; the entire film builds to the final shootout between these two adversaries. Although the villain, Frank Miller (Ian MacDonald), is absent for much of the film’s running time,



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the imminent threat he poses is repeatedly referenced by characters urging Marshal Kane to leave town before Miller returns. The threat posed by Miller’s return to Hadleyville causes everyone in town to refuse to help the marshal. They all prefer that he would simply run away; yet, running away is something he will not do. Kane’s presence in town as a competent and willing figure of law and order shifts the focus to the town’s regular citizens, who not only avoid a confrontation with Miller but also hold Kane in open contempt for placing such a burden on them. Yet Kane is the town’s sole savior, the only one able to stand up to Frank Miller. Despite his disgust at the citizenry’s cowardice—he famously throws his badge in the street in the final scene—Will Kane is ultimately represented as heroic for personally resolving a conflict that not only threatened the whole town, but also could not be adequately pacified within the strictures of the American legal system. High Noon is committed to demonstrating that, in Hadleyville at least, extralegal violence is required to deliver the ‘justice’ that the American legal system cannot. First, as is repeatedly remarked throughout the film, Kane is no longer the marshal; he had given up the job just after his wedding. Second, Kane is finally able to defeat Miller and his gang only through the aid of his new wife, who not only backs down on her ultimatum to leave him if he goes through with such violence but also directly assists him by shooting a man in the back. Formally, this extended shootout between Kane and Miller begins with a dramatic crane shot that emphasizes Kane’s solitude and visually stresses that this is a task that he must undertake alone. Yet, just as the ultimatum presented by Molly in The Virginian is totally ignored at the moment of gun violence, so any scruples concerning violence held by the new Mrs Kane are abandoned at the climactic moment. High Noon simultaneously suggests that a pistol can solve complicated problems of social organization—such as what to do about the villainous gang that will soon descend on the town in a murderous rampage—and portrays Kane as heroic precisely because he will stand alone and personally defend against an imminent threat. Widely read as an allegory for HUAC blacklisting that dominated the news in the early 1950s, the film also forwards the association between the pistol and personal violence. After all, Kane is himself threatened, explicitly, by Miller. His status as marshal will provide him no protection—and neither will elected representatives of the larger American legal system (the judge advises him to leave town) nor the townspeople themselves. Kane is,

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in effect, alone in this battle. Only his pistol provides him a means of protecting himself. Symbolic of speed, efficiency, and self-reliance, the pistol is also held up here as the firearm that is best-suited for personal protection. Countless other films trade on this same symbolism of the pistol as the weapon of choice for personal protection when the legal system is either absent, inept, or an insufficient deterrent to crime. Films such as My Darling Clementine (1946), Lawman (1971), and Hour of the Gun (1967) all show representatives of the American legal system, marshals or sheriffs, who must resort to extralegal gun violence to decisively resolve a larger dispute that has turned decidedly personal. On the other side of ‘the law,’ such films as Jesse James (1939), The Outlaw (1943), The Angel and the Badman (1947), The Law and Jake Wade (1958), and The Outlaw Josey Wales (1976) all feature an outlaw of Hart’s ‘“good” bad-guy’ type who resorts to a pistol to provide a rhetorically satisfying ‘solution’ to a larger conflict. In the climactic moment when the gunslinger’s pistol dispatches the villain who runs roughshod over ‘the law,’ the social, economic, and cultural disputes that underlie these films’ antagonisms are elided in favor of a personal confrontation between the hero and the villain(s). It is important to note here that many Westerns feature a fair variety of weapons. What is useful is the distribution of types of weapons over their characterizations, for the gun acts as a metonym in the genre. It functions as generic shorthand that defines character quickly, much like the oft-noted costuming trope of black-and-white hats for villains and heroes. A clichéd example may help illustrate the efficient economy of this iconographic shorthand: when Jack Palance enters the scene in Shane, we know that he is the heavy not just because he wears all black but also because, like Hart’s characters, he wears two pistols. Howard Hawks’s Rio Bravo (1959) features both rifles and pistols together, usefully illustrating the relative symbolic import of the two firearms, which help to define characters metonymically. The film emphasizes the personal difficulties and dangers involved in American legal procedures, so there is a pistol. There are two actually, but as they are wielded by, respectively, a young gunslinger who could easily be tempted to use his skill for criminal pursuits and the shaky hands of the town drunk, the film also worries about the morality of a gunman’s lifestyle, so there must be a rifle. The sheriff (John Wayne) wields a rifle and is depicted as a paragon of moral virtue as he tirelessly upholds the rule of law by detaining and



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then protecting a prisoner in a besieged jailhouse. Wayne represents a figure of such clear moral authority that for much of the film he need not even fire the rifle; indeed, in the opening scene he pacifies an angry drunk and staves off a bar-room brawl by using his rifle like a club. He also aids the recovery of the alcoholic gunslinger, Dude (Dean Martin), offering him a chance to be on ‘the right side of the law,’ and provides a job and sense of self-worth to a disabled old man (Walter Brennan). Furthermore, each of his partners in this venture to bring outlaws ‘to justice’—the reforming drunk, the aspiring gunslinger Colorado (Ricky Nelson), and the dance-hall girl (Angie Dickinson)—seems to grow as they join together under the leadership of the patriarchal sheriff.48 While the pistols must ultimately be employed to uphold an otherwise anemic legal system, the rifleman provides the film with a clear morality that justifies the personal gun violence. Despite their alternating emphasis on first the rifle and then the pistol, it is clear that the films mentioned above have much in common, as they all quite conspicuously present their hero’s gun violence as not merely justifiable, but honorable. More importantly, they explicitly argue that such gun violence, whether in the form of clear moral resolutions backed by a rifle or a pistol’s speedy exaction of vengeance following a legal transgression, represents in each case a model of a more heroic past that is to be recalled and remembered as a marker of a clearer, unambiguous brand of morality. In a word, this gun violence is heroic. Furthermore, in most of these films the gun violence is swift, clean, and sometimes even fun. No one who is shot in the belly bleeds to death slowly, nor does anyone gasp in vain for breath from a sucking chest wound. When this model of heroism began to be questioned in the Westerns of the 1960s and 1970s, what most scholars designate as the height of the genre’s ‘revisionist’ period, the symbolic import of the rifle and the pistol would give way to an increase in graphic violence, best symbolized by the machine gun. Machine-gun carnage and the revisionist Western The revisionist Western is thoroughly engaged with interrogating this Western gunslinger’s model heroism. In the films I discuss here the ‘hero’ is, in fact, more an antihero, for the films go to great lengths to demonstrate that their protagonists’ way of life is no longer tenable or socially acceptable. The predominant visual and rhetorical techniques of the classical Hollywood system—featuring close-ups of leading men,

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formulaic plots offering simplistic solutions to complex problems based on simple emotional dichotomies, and the performance of gender norms typified by such iconic stars as Gary Cooper, James Stewart, Randolph Scott and, of course, John Wayne—were challenged by the newer films of the Hollywood renaissance and foreign filmmakers that underscored the director’s status as an auteur. Both new strains sought to revise the norms of filmmaking with darker, more complex characters and more starkly realistic plots. In the Westerns of this period, the genre’s traditional representation of decisive masculine gun violence as a model of individual heroism is explicitly at issue. The plainly expressed sentiments in these movies collectively amount to a shared opprobrium for the Western gunfighter. Sending the message that ‘times are changing,’ or ‘the West is changing and you haven’t changed with it,’ as in Pat Garrett and Billy the Kid (1973), the brunt of the castigation is focused on the values embodied by the aged hero and the lifestyle he lives, which are no longer appropriate or desirable for the society in which he now finds himself. Other films that portray the Western gunslinger as an anachronism include The Man Who Shot Liberty Valance (1962), Lonely are the Brave (1962), Hud (1963), Ride the High Country (1962), and The Shootist (1976). The Western genre has, however, always implicitly argued that its hero does not comfortably ‘fit’ within civilized society, as borne out by the worn-out cliché of the hero riding off into the sunset. Relatively rare is the Western narrative that ends with its hero integrated into the society whose conflicts he has just resolved. Heroes such as Alan Ladd’s character in Shane, or Henry Fonda’s Wyatt Earp in My Darling Clementine are Western protagonists whose heroics are certainly depicted as out of the ordinary. Crucially, however, it is the extraordinary actions of these heroes that are represented in such films as solutions to difficult disputes, albeit particularly violent ones. In the revisionist Western, however, the Western gunslinger is often represented as the cause of violence. The use of gun violence as a mode of dispute resolution is no longer an extreme measure to be taken by heroic men only when all other measures come up short. Gun violence as a mode of dispute resolution is shown to beget only more violence. An early example of this argument is The Gunfighter, a dark portrayal of a man haunted by his life of gun violence who is dispatched by a young upstart doomed to carry on this cycle. Formally, these films are also far more graphic in their representations of gun violence, thus unsettling the sanitized portraits of the Western hero’s killings from earlier examples



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that exculpated the hero. The revisionist combination of questionable heroism and graphic violence is perhaps best exemplified by Sam Peckinpah’s film, The Wild Bunch (1969). A clear moral hero is conspicuously absent from The Wild Bunch. Infamous as an excessively violent film, often read as the director’s commentary on the brutality of the war in Vietnam, Peckinpah’s monumental 1969 film is also notable for its cast of characters, every one of which is coded by the film as morally unsound in one way or another. Most significantly, the members of the Bunch are all killers and thieves. Furthermore, although they often espouse allegiance to a code of honor, they are shown to frequently subvert that same code. For instance, the surety professed by the titular Bunch’s leader, ‘being sure is my business,’ is shown several times to be profoundly mistaken. In addition to the moral ambiguity inherent in the film’s sympathetic portrayal of such unsavory protagonists, the story abounds with savage representations of brutal gun violence. The Wild Bunch understands firearms solely as tools designed to effect lethal carnage. The conflation of marksmanship and morality, or of speed and decisive personal resolution evinced by earlier Westerns, is entirely absent in Peckinpah’s film. Complex intercutting, the gushing of blood made possible by the use of squibs, and slow-motion cinematography make death here a very ugly business. The Wild Bunch proceeds through a series of massacres, underwriting the film’s understanding of gun violence as atrocious, regardless of cause or consequence. The Wild Bunch resists easy dichotomization, significantly revising the genre’s heretofore simplistic understanding of gun violence. The Wild Bunch’s complication of the moral stakes of gun violence is supported by its extremely graphic and highly stylized shooting scenes, several of which involve a machine gun, one of the few shown in any Western until then.49 The machine gun, along with several cases of rifles, are stolen by the gang and sold to a group of Mexican revolutionaries led by the unscrupulous and avaricious General Mapache (Emilio Fernández). Mapache’s gleeful test-firing of the new weapon is a scene of complete disregard for either protocol or the safety of his own people, as he recklessly fires the gun without a tripod, barely able to control its massive firepower (see Figure 11). This representation of Mapache’s power-mad disregard for safety continues the genre’s long-established reification of the putative superiority of Anglo gun violence, a notable, if lamentable, continuity in a film so decidedly dedicated to unearthing the horrors of unchecked gun violence. Most

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11  Emilio Fernández as General Mapache with machine gun in The Wild Bunch, 1969

spectacularly, the machine gun features prominently in the final shooting scene at Aqua Verde, fired by numerous people on both sides of the suicidal massacre. The shooting of this scene highlights the danger of the weapon by frequently repeating shots of the massive damage done by the machine gun, filmed in slow motion to emphasize the writhing of bullet-ridden bodies mowed down by the seemingly unstoppable gun. Symbolizing at once both the slaughter attendant upon the use of the machine gun and the passing of the era of heroic outlaws, the continued grasping of the machine gun by the dead hands of the character Pike (William Holden) functions as the apex of the film’s commentary on the horror of gun violence. In the final analysis, the machine gun serves as the culmination of The Wild Bunch’s interrogation of the anesthetized, righteous gun violence traditionally represented by the Western hero, thematically arguing that this particular model of heroism is unfit, its time having passed. Beyond The Wild Bunch, the explicit, graphically violent representations of gunshot wounds and killings in revisionist Westerns not only blur the distinction between law and outlaw, but also refuse to sanitize the many murders committed by putative heroes and villains. In short, gunplay here is a messy, horrible business and the men responsible for such actions are haunted, castigated, and often killed for it. Indeed, such films as Hang ’Em High (1968), Heaven’s Gate (1980), The Great Northfield Minnesota Raid (1972), The Missouri Breaks (1976), and Buffalo Bill and the Indians (1976) all labor strenuously to reject the moral conflation of Western heroism and gun violence that had been so integral to the genre. Similarly, films



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such as Robert Altman’s McCabe and Mrs. Miller (1971) work earnestly to suggest that gun violence will not ‘solve’ anything. This increase in graphic violence has been identified as a part of the demise of the Western as a popular genre. As Richard Slotkin argues in Gunfighter Nation, the heroic type modeled after the reluctant hero of Wister’s Virginian could not remain salient in an era fixated on graphic violence. The specificity of the Anglo male hero using gun violence to defend certain notions of right and wrong was also challenged in a series of revisionist Westerns that explicitly targeted the gendered bias of the genre, such as McCabe and Mrs. Miller, or films that sought to revise the genre’s inherent racism such as Little Big Man (1970), Cheyenne Autumn (1964), and Buck and the Preacher (1972). As the cinema industry of the late 1960s and early 1970s increasingly turned out films featuring extended scenes of explicit, graphic violence, the reluctant hero acting in defense of an increasingly troubled notion of justifiable gun violence seemed as desperately out of touch as the anesthetized gun violence of a rifle or pistol seemed, at best, quaint or hokey. The 1960s and 1970s were also marked by rising domestic violence, several assassinations and riots, an increasingly unpopular war in Vietnam, and several tumultuous political and social upheavals that engendered a general anxiety over the use and meaning of gun violence. Given the long history of the Western’s reification of gun violence, it should not be surprising that during a period of unease over gun violence a concomitant rejection of the genre’s symbolism might occur. Revival Having gone dormant in the wake of the charged, transformative political climate of the 1960s and 1970s, the Western nearly vanished as a popular form of entertainment following the financial disaster of Heaven’s Gate (1980). As noted at the beginning of this chapter, the genre has witnessed a revival of sorts, however, since the early 1990s. Many of the newer texts, such as the exploitative Bad Girls and the ‘brat-pack’ vehicle Young Guns, are little more than remakes of ‘good old fashioned shoot’em-ups.’ Posse, for example, attempts to revise the genre’s historical racial bias by placing guns in the hands of powerful characters played by African American actors, yet the film’s interrogation of the genre’s racial politics similarly relies on a climactic spree of gun violence to effect plot resolution. Other more self-consciously revisionist works, such as Dead Man and The Ballad of Little Jo, represent more sustained interrogations

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of the genre’s codes and political stance. Most notably, Clint Eastwood’s Academy Award–winning film Unforgiven works tirelessly to depict gun violence as a messy, brutal affair. In the end, though, despite its revisionary impulses, Unforgiven’s formulaic plot relies so heavily on the genre’s trope of gun violence that the resolution of the disputes in the film, as in so many of the revisionist Westerns, comes down to Clint Eastwood mowing down a room full of people. A similar return to Western tropes also informs Justified, the FX series featuring the contemporary gunslinging US Marshal Raylon Givens, who repeatedly resolves conflicts the old-fashioned way. I will offer an extended analysis of selected representative films from this most recent period—the 1990s to 2012—in later chapters. What is crucial to note about these Westerns is that despite variations in plot and sentiment they all trade on the genre’s long-cherished representations of gun violence and continue to glorify specific firearms, coding particular guns as more or less fit for gun violence that can be culturally justified. This sustained commitment to symbolic gun iconography reveals the genre’s continued function as an interrogation of anxieties associated with personal gun violence in the United States. The point, as it were, of the iconographic analyses mentioned above has been to show how the Western has worked in the world as a cultural product to discipline the radical potential of the juridical shift toward an individuated conception of self-defense and a broadening of justifications for gun violence. By far the most important disciplining apparatus within the Western has been its construction of a controlled, reticent man, reluctant to use violence but fantastically adept with a gun when the moment arrives—and arrive it must for the Western hero—when he will blow away the villain. The next chapter will concentrate on constrictions within this masculine model, arguing that such a model of Anglo American masculinity is stylized as a means of extralegal control over the broad license for personal violence allowed within the American legal system through American self-defense doctrine. Notes  1 Philip Fisher, Hard Facts: Setting and Form in the American Novel (New York: Oxford University Press, 1985), p. 8.  2 Matthew Carter, The Myth of the Western: New Perspectives on Hollywood’s Frontier Narrative (Edinburgh, UK: Edinburgh University Press, 2015), p. 5.  3 Robert Warshow, ‘Movie chronicle: The Westerner,’ in Jim Kitses and



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Gregg Rickman (eds), The Western Reader (New York: Proscenium, 1998), pp. 35–48; p. 47.  4 Fisher, Hard Facts, p. 8.  5 Lee Clark Mitchell provides an interesting examination of the foreboding quality of this landscape painting, concentrating his attention on the paintings of Albert Bierstadt, in the third chapter of his Westerns: Making the Man in Fiction and Film (Chicago, IL: University of Chicago Press, 1996).  6 James Fenimore Cooper, The Last of the Mohicans (Oxford, UK: Oxford University Press, 1990 (1826)), p. 15.  7 Ibid., pp. 20, 149, 217.  8 Ibid., p. 73.  9 James Fenimore Cooper, The Pioneers, or Sources of the Susquehanna; A Descriptive Tale (New York: Oxford University Press, 1990 (1823)). 10 James Fenimore Cooper, The Deerslayer: or, The First War-Path (New York: Oxford University Press, 1990 (1841)). 11 Cooper, The Last of the Mohicans, p. 77. 12 Ibid., p. 81. 13 Ibid. 14 Ibid., p. 335. 15 Ibid., p. 336. 16 Ibid., p. 337. 17 Ibid., p. 338. 18 Fisher, Hard Facts, p. 85. 19 Ibid., p. 42. 20 Daryl Jones, The Dime Novel Western (Bowling Green, OH: Popular Press, 1978), p. 56. Emphasis added. 21 Prentiss Ingraham, Adventures of Buffalo Bill from Boyhood to Manhood, in Beadle’s Boy’s Library of Sport, Story and Adventure, 1:1 (New York: Beadle & Adams, 1882). Unpaginated. Available at www-sul.stanford.edu/depts/dp/pennies/ texts/ingraham1_toc.html. Accessed July 12, 2017. 22 Ibid., Chapters 11, 30. 23 Ibid., Chapter 24. 24 Ibid., Chapters 3, 10, 22. 25 Erwin v. State, 29 Ohio St. 186 (1876); Runyan v. State, 57 Ind. 80 (1877). See Chapter 2 above for more on these cases. 26 Pat F. Garrett, The Authentic Life of Billy, The Kid (Norman: University of Oklahoma Press, 1954 (1882)). 27 Historical accounts lead us to believe that Garrett himself was barely literate, so it is important to note that this text was a collaborative effort between Garrett and a journalist, Ash Upson. For more about each man’s contribution to the novel, see the ‘Introduction’ provided by J. C. Dykes in the Western Frontier Library edition of The Authentic Life of Billy, the Kid (Norman: University of Oklahoma Press, 1954 (1882)). For a more thorough

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account of the historical figure, William Bonney, and the territorial politics involved during the Kid’s life, including the ‘Lincoln County Wars,’ see historian Frederick Nolan’s annotated version, Pat Garrett’s The Authentic Life of Billy the Kid: An Annotated Edition (Norman: University of Oklahoma Press, 2000). 28 Garrett, The Authentic Life, p, 19. 29 Ibid., pp. 42, 57. 30 Ibid., p. 3. 31 Ibid., p. 15. 32 Ibid. 33 It runs well beyond this book’s aims to provide a full account of the treatment of Native Americans in the nineteenth century or of their representation within the Western genre. Suffice it to say here that the shift in the juridical mode evinced by the differing depictions of Native American in The Last of the Mohicans and The Adventures of Buffalo Bill can be read as adjustments to the variant anxieties around respective contemporaneous events such the Indian Removal Act of 1830 and the Battle at Little Big Horn in 1876. 34 Jane Tompkins, West of Everything: The Inner Life of Westerns (New York: Oxford University Press, 1992), p. 132. 35 Owen Wister, The Virginian (New York: Penguin Putnam, 2002 (1902)). 36 Ibid., pp. 82–3. 37 Ibid., p. 106. 38 Ibid., p. 318. 39 Ibid., p. 322. 40 Ibid., p. 341. 41 Ibid., p. 350. 42 Ibid., p. 354. 43 I extrapolate this reading of the Western hero’s skill set by analogy to the skills necessary in both an industrialized workforce and in the administrative workforce of managerial capitalism, and the terminology from Walter Benn Michaels’s essay on American naturalism, ‘Corporate fiction: Norris, Royce, and Arthur Machen,’ in Sacvan Bercovitch (ed.), Reconstructing American Literary History (Cambridge, MA: Harvard University Press, 1986), pp. 189–219. 44 Brown v. United States, 256 U.S. 335 (1921). 45 Natural Law philosophy is a hugely important concept that cannot be explored fully here. Suffice it to say that the appeal to Natural Law in the Western often works to support a complex and historically specific patriarchal, racialized hierarchy through an appeal to nature whereby the gendered order of violence is argued to be somehow eternal or universal. For more on the contours of Natural Law philosophy, see A. P. d’Entrèves’s Natural Law (London: Hutchinson, 1970). For more on the American conceptions of Natural Law, see Benjamin Fletcher Wright, Jr’s American Interpretations



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of Natural Law: A Study in the History of Political Thought (New York: Russell & Russell, 1962). 46 Emphasis and ellipses in the original. 47 Richard Dyer, White: Essays on Race and Culture (New York: Routledge, 1997), p. 35. 48 It is worth noting that a similar notion of ‘growth,’ albeit from another period, is explored in great detail in Richard Slotkin’s Regeneration through Violence: The Mythology of the American Frontier, 1600–1860 (Middletown, CT: Wesleyan University Press, 1973). 49 A machine gun is also featured in The War Wagon (1967), although by no means is it such a potent symbol of modernized brutality as it is in The Wild Bunch. Vera Cruz (1954) and The Vanishing American (1925) also both feature machine guns as symbols of modern brutality, but their relatively sanitized portrayals do not have the same rhetorical impact of Peckinpah’s film.

5

Guns and governmentality: normative masculinity and disciplined gun violence Western iconography is a prominent feature of gun manufacturing and sales. Drawn from history, legend, or even the purely fictional frames of Hollywood, the ‘West’ has a special resonance in the American gun market. As Joan Burbick has pointed out, the symbolism of nineteenth-century Western expansion and the American frontier has been exploited by arms manufacturers for over a century to make ‘gun ownership moral, fun, and normative.’1 Searching the Internet with the query ‘Western guns’ yields more than fifty million sites.2 Click on the products offered—a mixture of working guns that fire live ammunition and non-­ firing re-creations meant for decoration—and the first guns offered carry monikers reminiscent of nineteenth-century Old West history. Despite being made with modern technologies and featuring materials such as rubber grips that were unavailable to nineteenth-­century manufacturers, many of these weapons and decorations are explicitly marketed using such phrases as a ‘piece of history’ (see Figure 12). The aggressive marketing of these guns should perhaps come as no surprise. ‘Cowboy Shooting’ is a specific type of competitive marksmanship utilizing single-action revolvers. These guns, remakes of earlier models and technology long-since replaced by newer, more advanced firearms, are sold and traded by and to people who role-play in a cultural fantasy, under the mystique of ‘the Western’ that ‘rested on an inflated belief in the individual and the power within reach of an ordinary human being.’3 As an indispensable part of this fantasy, the single-action firearm is a fetish gun that reifies the power of the single individual through the symbolism of unambiguous conflict resolution achieved with a single shot.



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12  Colt advertisement, September 1955

George Stevens’s 1953 film, Shane, provides a classic iteration of the ‘mystique of the Western’ so integral to the promotion of these firearms. The Western’s formulation of gun violence as an ennobled mode of conflict resolution is well illustrated in this film’s straightforward plot: an unknown gunslinger wanders onto the screen and into the lives of a small farming family who are threatened by larger, consolidated ranching interests. The eponymous hero (Alan Ladd) identifies with this small family; he shares their values, envies their settled life, and longs to be a part of their world. He works alongside them on the land and will all too soon fight on their behalf. He has no clear past and no clear future; he emerges from the distant mountains like a specter, and once his fantastic violence has resolved the plot’s central conflict it is to these mountains that he will ride off again at the close of the film. The family needs his

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violence to ‘solve’ their problems but it is also the reason he cannot stay. As he explains at the end, ‘there’s no living with a killing; there’s no going back from it.’ Shane stands out in the film’s diegetic world as a figure to be idolized and emulated. Joe Starrett (Van Heflin) sees him as a man who works hard, a reliable friend who will come to his aid. Marion Starrett (Jean Arthur) sees in Shane a man who could provide for her family, a model for her young son Joey (Brandon De Wilde). Furthermore, her sexual attraction to him is palpable, as even Joey comments, ‘Mother wants you. I know it.’ Beyond sensing this evident romantic tension, little Joey is an especially important figure in the film, which consciously constructs his character as a stand-in for the viewing audience. In other words, Shane presents its hero through the eyes of this young boy. Loyal Griggs’s cinematography utilizes a series of eyeline matches in the opening scene to establish that Joey’s perspective controls the heroic valorization of Shane. Shane is first glimpsed by Joey, and it is Joey who announces his arrival to his father. When Joe Starrett looks to this approaching figure viewers see a long shot of Shane astride his horse. Once Shane arrives at the farm, however, the reverse shot of Joey’s searching look at this figure presents Shane from a low-angled close-up; from the chest up, Alan Ladd fills the frame. As seen by Joey’s eyes in this shot, Shane is bathed in soft light, given such monumental stature that he completely blocks all the surrounding landscapes that had figured so prominently in the background of previous shots featuring sweeping widescreen vistas. In this one shot, before he even knows the man’s name or purpose, Shane becomes visually and figuratively the most important figure in Joey’s world. Shane continues to represent key scenes from Joey’s perspective through reaction shots and eyeline matches. Importantly, these are scenes of action, of violence. When Shane fights, with either his fists or a gun, the sequence opens and closes from the perspective of little Joey. In an early fight in the local store, an eager Joey gazes on, eating candy, while his father and Shane fight together against the Rykers (see Figure 13). Joey’s wide-eyed reaction shots are also interspersed within the fight between Joe Starrett and Shane, and Joey’s perspective opens and closes the climactic shootout between Shane and Wilson (Jack Palance). Joey’s perspective controls the viewer’s response to Shane’s violent action scenes. Not unlike the chorus of a Greek drama, Joey represents the viewer within the narrative space of the film. Much like an audience in a theater, Joey idly snacks while enthusiastically watching fistfights. He



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13  Brandon De Wilde as Joey Starrett, snacking idly while witnessing violence in Shane, 1953

carries a toy gun, brandishing it about in mock defiance, wants to learn to handle a real gun, and positively yearns to see Shane demonstrate his speed with a pistol. Eagerly expectant to watch scenes of violence and killing, this little boy symbolizes the audience and mirrors the popular expectations of the aesthetic pleasure to be delivered by a Western. Joey idolizes Shane more than his own father and wants desperately to be just like this man whom he has lionized into a hero. In Joey’s eyes, Shane’s most important characteristic, which Joey admires and, indeed, what sets Shane apart from the little boy’s father, is the new ranch hand’s capacity for violence, symbolized by his pistol. Shane has promised to teach Joey to shoot, and delivers a miniature tutorial halfway through the film. The lesson is not so much about shooting as

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it is about being a quick draw: how to wear your holster and quickly pull your gun. This exercise is interrupted by Marion, who admonishes Shane, exclaiming that ‘guns aren’t going to be part of my boy’s life,’ to which Shane replies, ‘A gun is a tool, Marion. No better, no worse than any other tool; an axe, a shovel, or anything. A gun is as good or as bad as the man using it.’ Shane’s reply is an attempt to ease Marion’s worries, to ease her concern about the potential harm that might come from a specific object (a pistol) or a certain skill (quickly and accurately firing this weapon) by conflating the object with the man who wields it. There is something amiss here, however. For a gun is not like other tools. An axe and a shovel can be used to build things. While it is certainly true that almost anything can also be used to kill, a gun is specifically designed for this one purpose. Unlike an axe or a shovel, a gun (at least any gun seen in a Western) is a tool designed only for meting out death. Shane’s explanation, however, encapsulates a core understanding of the Western genre: answers to questions of morality can be clearly deduced by comparing the actions of good and bad men. In other words, violence—even deadly, swift and decisive gun violence—is not necessarily a bad thing. Conflicts can be resolved when good men kill bad men, and gun violence can be used to advance the general good of society. As Jane Tompkins has pointed out, ‘the genre exists in order to provide a justification for violence.’4 Furthermore, Shane here calls forth the genre’s dual fixations on violence and masculinity when he conflates the actions of men with the use of a gun. We can see in this admittedly brief reading, then, the utility of the genre’s reduction of complex issues to an alluring fantasy of resolute, decisive gun violence justifiably employed by an Anglo American hero. The Western’s triumphant male hero, whose gun violence is controlled, direct, decisive, and above all justified, has a special place in these cultural fantasies, for the historical re-creation gun market is saturated with commemorative guns, exceedingly elaborate and showy pieces dedicated to ‘honoring’ a particular individual’s place in Western history. America Remembers is an interesting manufacturer trading in prepackaged nostalgia for a West that never was.5 This gunsmith specializes in commemorative pieces, guns that, according to its website, are ‘dedicated to the remembrance of notable Americans and historic American events.’ Although America Remembers offers firearms in several categories, such as ‘Civil War,’ ‘Military Tributes,’ and even ‘Sports,’ by far their largest selection is committed to Western symbolism.



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Invariably ornate, often with intricate gold leaf and filigree patterns and stylized portraits adorning the stock and barrels, there are commemorative guns for such legendary lawmen as Bat Masterson and Wyatt Earp, which sell alongside the models carried by notable desperadoes and outlaws such as Billy the Kid and Jesse James. America Remembers also offers a large selection of guns specifically dedicated to ‘Hollywood Cowboys,’ with products representing a range of actors and personalities such as Tom Mix, Gary Cooper, and Gene Autry. There are even guns ‘remembering’ Clayton Moore of the television series The Lone Ranger (1949–1957) and Elvis Presley—‘honored’ with an elaborately ornate pistol here, not for his contribution to music but for his roles in three star-vehicle Westerns, Love Me Tender (1956), Flaming Star (1960), and Charro! (1969).6 It is here also that one can find the special edition ‘John Wayne Tribute rifle.’7 Guns dedicated to John Wayne, the most recognizable Western icon of all, represent a popular niche within an already highly specialized and fetishized gun market. What is perhaps most interesting about the nostalgia embodied in these pieces is the way they are commodified as weapons not just for honoring or remembering, but as guns that ‘tamed’ something. Historically, Colt’s 45-caliber pistol was marketed as the ‘Peacemaker,’ a gun that through its superior firepower could allow one man to make peace in the face of multiple adversaries. Similarly, the Winchester rifle was indeed long sold under the banner of ‘the gun that won the West’ in the nineteenth century, again suggesting the capacity of superior gun violence to provide the ultimate solution to violence produced by evil men. This same trope of violence as a zero-sum game has certainly survived into the twenty-first century, with the escalating tensions over nuclear weapons with Iran and North Korea as contemporarily poignant examples, and the Western has been fruitfully examined as underwriting bellicose political ideologies on the national level.8 I argue here for a less strict political–allegorical reading of the genre’s history, instead stressing that the Western’s particular justifications for personal gun violence and the symbolic connotations associated with rifles and pistols are perhaps most interesting when considered as a normative apparatus that disciplines, indeed tames, the violent potentiality of American gun rights. The Roy Rogers tribute .45 is a case in point. Advertised in American Rifleman in October 1991, this particular gun features delicate scrollwork and an ivory handle and shines with a beautiful luster (see Figure 14). The advertisement superimposes the handgun over a portrait of Roy Rogers, smiling brightly and reassuringly.

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14  ‘The Gun That Won the Westerns.’ Advertisement for Roy Rogers tribute pistol, 1991

Tellingly, this gun continues to be sold explicitly as ‘the gun that won the Westerns.’ A conscious reworking of the old Winchester rifle campaign, this advertisement abounds with the suggestion of triumph, of the taming of the lawlessness that is the hallmark of ‘the Western.’ If, for the sake of argument, we grant that a popular genre itself—and not its



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setting, ‘the West’—is a thing that could be ‘won,’ something still seems amiss. The self-styled ‘King of the Cowboys,’ Rogers is perhaps an unlikely star for such commemoration. His singing-cowboy routine, performed alongside his trusty horse Trigger, his ‘Wonderdog’ Bullet, and his angelically helpful cowgirl wife Dale, was pitched largely to children.9 The star of a successful 1944–1955 radio show that transitioned into a 1951–1957 television program and of nearly a hundred films, Rogers was an adept entrepreneur and marketer of his image in dolls, toys, endorsements, and even restaurant chains. Yet the Roy Rogers character represented a rather sanitized version of the Western gunslinger. Often wearing shirts studded with precious stones and always opening or closing his appearances with sappy songs that lyricized and glamorized the life of the cowboy, Rogers rarely resorted to gun violence. More often than not he used his guns to disarm an antagonist; the plots were resolved by the heroics of either his horse or his dog as often as with his pistol. Although at first glance Rogers may appear an unlikely candidate for the ‘winning of the Western,’ the gun being marketed under his name trades on a complex image of armed triumph and the triumph of normative, heterosexual Anglo masculinity. Furthermore, in this complex mixture both justifiable gun violence and heteronormative masculinity can be aestheticized and marketed as commodities.10 A simulacrum writ large, the gun ‘that Won the Western’ here perfectly encapsulates the symbolic power of the genre’s iconography to make personal gun violence justifiable by making it tame, stylized, and fun. While the ‘fun’ encapsulated in the genre’s stylized gun violence has been treated in earlier chapters as a function of its meditations on justice and the changing iconographic reification of certain firearms within the genre’s history, the ‘taming’ hinted at above in the brief discussion of the overlap between gun sales and Western imagery will be treated more thoroughly in this chapter’s discussion of normativity. To employ the weaving metaphor from this book’s introduction once again, this chapter marks the beginning of the weaving proper. Having covered in previous chapters the warp—the American legal system’s governance of gun possession and justifiable homicide—along with the woof—the Western genre’s long history of worrying anxiously over the problems of gun violence and justice—this chapter begins to tie these two seemingly disparate strands together. By invoking the weave as a metaphor for seeing how these discursive regimes have operated together, I am here arguing that the genre’s dual fixation on Anglo masculinity and

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gun violence together do the cultural ‘work’ of the Western genre. In other words, the genre’s obsession with these two conceptions, Anglo masculinity and justifiable gun violence, are read here as a disciplinary supplement to the American legal system’s adjudication of self-defense and gun possession. The appeal to masculinity as a rationalization for gun violence in Westerns is so endemic that it constitutes a defining feature of the genre, which has established and relied on an ideological tautology equating masculinity with gun violence. The connection is not rationally explored, but it is often explicitly evoked as a trump card, if you will, a final explanation for why the hero must shoot the villain. As noted above, Wister’s Virginian, for example, refutes Molly’s objections to such gun violence with a rhetorical question: ‘Can’t yu’ see how it must be about a man?’11 Within the parameters of the genre’s cultural imperatives, the Virginian must be willing to utilize gun violence to solve a purely personal dispute. Several critics have already explained, in various ways, the Western’s simultaneous focus on masculinity and violence. In her study of Wister’s Virginian, Jane Tompkins argues that one of the imperatives of climactic masculine action within the Western is that it must occur in ‘opposition to a woman’s will.’12 As an account of the genre’s genesis alongside canonical works of American Realism and Naturalism, the Western in Tompkins’s reading looks very much like a self-conscious break from the sentimental tradition as embodied in the works of Harriet Beecher Stowe or Henry James. Lee Clark Mitchell has similarly noted the genre’s masculine violence: ‘No other popular genre asks what it means to be a man so assiduously as the Western does, which helps explain why violence is one of the genre’s central features.’13 He goes on to note that this connection is far from an essential or biological component of the male body, but rather achieved through a process of repetitive assertions that construct an image of masculinity that is depicted as natural within the genre. The repetitive process by which a putatively ‘natural’ masculinity must be constructed and constantly demonstrated seems deeply contradictory. For Mitchell, however, ‘the process by which he [the Western hero] becomes what he already is’ forms the core concern of a genre that is ‘deeply haunted by the problem of becoming a man.’14 Martin Pumphrey has similarly pointed out the seeming contradictions within the Western’s articulation of masculine heroism. For Pumphrey, these ambiguities are the source of the genre’s power to



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provide a model for twentieth-century men that frames the dictates and prescriptions of masculinity: ‘The experience of not knowing exactly what masculinity involves, of choosing between masculinities on the basis of mutually contradictory imperatives, endows the process of learning masculinity with a force that certainty never could or would have.’15 Therefore, As Virginia Wright Wexman has pointed out, ‘the identification of the Western hero as a man’s man became so firmly established that it became a taken-for-granted aspect of virtually all Westerns.’16 I join Tompkins, Mitchell, Pumphrey, Wexman, and others who have focused on male display in Westerns by considering how the genre constructs a particular mode of masculinity as normative.17 I see my contribution to the analysis of Anglo masculinity in the Western to be unique, however, insofar as I emphasize how this model of masculinity conforms to the implicit limitations within the broad license of American self-defense doctrine. In brief, provided you are otherwise within your rights and that your attacker presents a direct and imminent threat of grave danger, you are legally justified in using deadly force to repel an attack. Robert Warshow has suggested that the Western hero’s gun is merely the best means of conveying a ‘certain image of a man, a style, which expresses itself most clearly in violence.’18 As I argue, the inverse is equally true: the Western exhibits a style of violence that expresses itself most clearly as masculinity. I contend in this chapter that the Western genre’s masculine style functions as a ‘technology of citizenship,’ a disciplinary apparatus that seeks to tame the exercise of personal gun violence. I draw the term ‘technology of citizenship’ from Barbara Cruikshank, which she defines in The Will to Empower: Democratic Citizens and Other Subjects as ‘discourses, programs, and other tactics aimed at making individuals politically active and capable of self-government.’19 Cruikshank’s book offers a pointedly suggestive account of Foucault’s idea of power, especially bio-power, as productive. As she puts it, ‘Citizens are not born; they are made.’20 Her analysis of welfare and social services strikingly illustrates how a varied network of powers can have cumulative effects without being driven by a centralized, guiding intention. Concerned with ‘a form of power that promotes rather than represses subjectivity, power that produces and relies upon active subjects rather than absolute subjection,’ Cruikshank conceives of the interrelated networks of bio-power as operating to ‘invest the citizen with a set of goals and self-understandings.’21

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The Western has long articulated a rather circumscribed notion of masculine identity that is reinforced by the particularity of a male character’s gun violence. As I argued in the previous chapter, to be a man within the Western requires not only a willingness to use a gun but also a unique set of skills. Significantly, the Western gunslinger has been glamorized as rugged, restrained, reticent and, above all, an individual willing and able to defend himself and others with mortal violence without having first to consider retreating. These skills and character traits distinguish Western heroes from those of other genres, and have also been enormously influential in the social construction of a hegemonic masculinity—straight, white, and with a dynastic interest in property—that has developed in parallel with much of the evolution of the American legal system.22 I argue here that the Western genre itself represents a technology of citizenship. While Cruikshank suggests that these technologies might include ‘a neighborhood organizing campaign, an empowerment program, safesex education, a shelter for battered women, social service programs promoting self-help, self-sufficiency, or self-esteem, or a radically democratic social movement,’ I posit that this enormously influential popular genre also has functioned as a technology of citizenship.23 As such a technology, the Western is simultaneously ‘voluntary and coercive’ as ‘the actions of citizens are regulated, but only after the capacity to act as a certain kind of citizen with certain aims is instilled.’24 The particular type of citizen at issue here is an Anglo man armed with a gun, and the aim to be controlled is the wide authorization of personal gun violence enabled by American self-defense doctrine. As a technology of citizenship, the Western constructs an idealized conception of Anglo American masculinity that not only provides socially acceptable justifications for violence, but also controls, reigns in, or limits the capacity for gun violence within the American legal system. The Western’s idealized masculinity makes sense as a social, cultural technology for controlling the citizen-subject’s potential violence when we consider this masculinity as a normative, disciplinary apparatus. In short, the Western gunslinger is presented, explicitly, as a model of how someone who is biologically male should act in the world. It is commonplace to note that the Western formula takes great liberties with the ostensibly historical facts it narrates. Triumphant tales of conquest and the progress of civilization provide a national mythology, one that simultaneously trades on the value of a history that it actively distorts into a progressive vision. The genre’s construction of a model of masculinity,



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as the anxious focus on Anglo American masculinity and the justifiability of personal gun violence suggests, is no less distorted, no less idealized, than its approach to history. What matters is that the genre’s sense of both history and masculinity be presented, often self-consciously, as—to repeat the above-mentioned quote from The Life and Times of Judge Roy Bean—‘the way it should have been.’ Michel Foucault and the numerous critics who have drawn on his insights have painted a picture of the development of Anglo European civilization that is by now familiar, a tale of the transition from complete subjugation to monarchical law to the varied mechanisms, technologies, and apparatuses of modernity that produce individual subjectivities. Foucault’s conception of the generative, productive nature of diverse networks of power, which he termed ‘biopower’ in his History of Sexuality, has been massively influential.25 This critical tradition has turned analyses of the modern subject away from punitive coercion and toward active participation to see ‘how actual relations of subjugation manufacture subjects.’26 This turn represents a new way of conceiving of relations between the individual subject and the social organization within which that individual lives (be it democratic, totalitarian, socialist, etc.). As Foucault has argued, ‘the political and economic conditions of existence are not a veil or an obstacle for the subject of knowledge but the means by which subjects of knowledge are formed.’27 In such a system, it makes as little sense to think of power as imposed on a subject from the top down as it does to think of an a priori subject who is then interpolated into a system of power, either with or without that subject’s consent.28 Gone is the unique and autonomously thinking individual of René Descartes, replaced by a subject whose individuality is an effect produced by a networked system of discursive powers that works ­simultaneously on and through this subject.29 Mark Canuel has astutely identified a mimetic tendency that is common to these Foucauldian analyses, a methodological predisposition whereby ‘the modern subject inevitably looks like a version of the architecture she inhabits, while the same architecture comes to look like an idealized version of her own consciousness.’30 On his reading, the problem with such analyses is not so much that they are logically defective or that their mimetic vision is false, but that ‘the work that the forms do—architectural, linguistic, and so on—[gets] ignored.’31 Heeding Canuel’s warning, my analysis of the resonances between the Western’s construction of Anglo masculinity and the American legal system’s adjudication of gun violence in this chapter foregrounds the

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work done by this gender construct as a disciplinary, indeed interdisciplinary, norm. This treatment of the complex relationship between legal paradigms and cultural practices, then, seeks to pull together the warp and the woof in the American culture of gun violence. As Foucault has suggested, the aim is not ‘to question discourses about their silently intended meanings, but about the fact and conditions of their manifest appearance … about the field where they coexist, reside, and disappear.’32 The coexistence, indeed interchangeability, of norms of violence within the legal paradigm of American self-defense doctrine and the Western is not purely mimetic, but instead plays out in an active, evolving negotiation between two discursive fields that together imagine the ideal American citizen as an armed, Anglo man. Importantly, there need not be any direct causality between these regimes. Nor does the operation of a disciplinary norm necessarily need be in service of any guiding intention motivating the overlap and interwoven evolution of these discursive formations. We are not, in other words, looking to uncover some Machiavellian cabal with handwringing and colluding Republicans at the helm. For the operation of power is far more diffuse, and more effectively operant at the level of individual subjectivities. The ‘norm’ is perhaps the most important term in the subjectivizing relation between these distinct discourses of power. This norm is, in effect, what enables the American legal system and the Western genre to articulate together a vision of American violence and gender. As a principle of measurement this norm is itself an object of the regularized language of discipline coinciding with the onset of modernity in the nineteenth century, specifically derived from the emergent sciences of statistics. A statistical norm is a measurement establishing the median within a larger set of measurements. In the Foucauldian sense of biopower, however, within the language of normativity, such a norm is always also evaluative. To take a mundane example, imagine a group of people who are measured for height and weight. Within this group there will be evident variations; some will be heavier and taller, others lighter and shorter. The statistical norm is the average of these measurements, the range within which the majority of these varied measurements cluster. Let us say, then, that the average height and weight for this group is 5 ft 8 in and 185 lb. Importantly, even if no single individual within this group matches this exact measurement, 5 ft 8 in, 185 lb would still be the norm, the average, of this set of measurements. An evaluative norm however, implies judgment. To continue our example, measured in the



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evaluative language of normativity, 5 ft 8 in, 185 lb is no longer simply a measurement to which any of the bodies in the group does or does not correspond; as an evaluative norm this height and weight become an imperative, the height and weight that every member of the group should be. Furthermore, the additional imperative implication of the evaluative standard means that this normative value need not have any correspondence to actual measurements within the group. The evaluative norm is, for Foucault, the language of discipline, the interchangeable language of expression and evaluation that replaces the purely repressive language of the sovereign conception of power. Thus, with the rise of modernity and bio-power, the norm comes to replace law conceived as a purely negative edict or restriction. In other words, the sovereign rule could only have stated ‘thou shall not,’ whereas the norm instead encourages participation by proclaiming instead that ‘you should be… .’ There is more to this transformation than simply the switch from negative constraint to positive freedom. As the phrase ‘you should be’ above illustrates, the norm operates as an apparatus of social regulation, operating with no theoretical limit to the itemized component of body, mind, or mentality under its guise. The perfect biopolitical strategy for managing the vicissitudes of life, the norm instructs us how to be in the world by objectifying bodies and individuals. There are fewer prohibited actions than under the old regimes, but now there is a new type of person who is actively encouraged, or recruited, to join the normative society.33 Following this trajectory, the norm would appear to be opposed to law. Or, put another way, a completely normative society would perhaps not need the restrictions put forth within the discourse of law. François Ewald, however, has suggested that the language of normativity is less an objection or replacement than it is a supplement to the formal discourse of a legal system: ‘the formation of a normalizing society in no way diminished the power of law or caused juridical institutions to disappear. In fact, normalization tends to be accompanied by an astonishing proliferation of legislation.’34 For Ewald, the norm is a regulatory apparatus, a flexible discursive mechanism that works as a bridge between distinct fields, practices, and epistemologies: The norm is the principle that allows discipline to develop from a simple set of constraints into a mechanism; it serves as the matrix that transforms the negative constraints of the juridical into the more positive controls of normalization and helps to produce the generalization of discipline. … The

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norm relates the disciplinary institutions of production – knowledge, wealth, and finance – to one another in such a way that they become truly interdisciplinary; it provides a common language for these various disciplines and makes it possible to translate from one disciplinary idiom into another.35

Drawing on Ewald’s revision of the Foucauldian conception of normativity, along with a useful and provocative extension of Foucault’s work by Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Governance (1994), I am arguing that we should view the Western genre as an imaginative supplement interwoven with the formal discourse of the American legal system.36 In this chapter I posit that the Western’s conception of Anglo masculinity is an evaluative norm. To be quite clear, I am not speaking simply about this normative masculinity as a means of disciplining gender roles for nineteenth- and twentieth-century audiences, nor am I speaking simply of the genre’s relegation of nearly anyone not Anglo and male throughout its history to supporting roles at best; by now these are obvious starting points for any serious study of the genre or American masculinities. I argue, instead, that the model of masculinity set forth, explored, repeated, and worked through in the Western genre serves to discipline personal gun violence. This masculinity is normative inasmuch as it ‘is a principle of communication’ that asks ‘each one of us to imagine ourselves as different from the others, forcing the individual to turn back upon his or her own particular case, his or her individuality and irreducible particularity.’37 Anxiously asking what it takes to be a man, and asserting with equal anxiety that the answer is gun violence that is justifiable, the genre has attempted to tame gun violence by representing a normative Anglo masculinity that proscribes what such violence should be. The stylized masculine gun violence of the Western genre is distinct in several ways from that of other genres that prominently feature guns. First, unlike gangster movies, private detective movies, or procedurals, all genres set in the present, the Western is defined by a historical setting in a remote past. This past not only creates a nostalgic structure of feeling but also associates the genre’s heroic gun violence with skilled marksmanship. Historically much closer to hunting as a means of subsistence, the Western man’s very survival depends on his sure aim and skill with a gun. Second, the rugged, reticent Westerner’s heroics depend on a very particular gun. The Western hero’s gun is invariably a single-shot firearm; whether a rifle or a pistol, the gun most closely identified with



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the Western hero is one requiring far greater accuracy and precision than the machine gun that is so closely identified with the gangster. As a technology of citizenship, the Western not only culturally affirms but also disciplines the potential for rampant gun violence opened by the American self-defense doctrine. In this sense it is most important that the Western gunslinger must be pushed to the limit for this stylized gun violence to be a mark of masculine heroism. These distinctive traits not only mark the particularity of the Western’s representations of gun violence, but crucially also symbolize the genre’s heroic gunslinger as embodying a certain idealized image of masculinity, a normative conception that is closely aligned with the American self-defense doctrine. The correspondence between the rationalization through American self-defense doctrine of private violence and the Western’s idealized portrait of masculinity is evident in the distinctions traditionally made within the genre between the hero and the villain. The hero is everywhere a man of restraint, self-­contained and self-reliant, while the villain is a foil of verbal and physical excess. The villain is often a racial or ethnic minority, or closely associated to these groups through costuming tropes. Additionally, this villain talks too much, drinks too much and, most importantly, shoots first. The hero’s ‘defensive’ shot, then, accords perfectly with the ‘tendencies of the American mind’ as suggested in Runyan v. State.38 As McIlvaine argued in the decision for Erwin v. State, this ‘true man is not obliged to fly from an assailant.’39 As the genre persistently urges, to retreat is to be less of a man. Most importantly, then, unlike other genres that feature guns, the Western controls the justifiability of gun violence in the iconic, ritualized shootout that is typically relegated to the penultimate, climactic scene. In formal terms, the cinematic Western’s ‘honorary’ code of not shooting a man in the back is usually paired with the visual trope of forward motion that is often employed through subjective shots, widescreen two-shots, and a consistent shot-reverse-shot pattern. In contrast to the English stricture to ‘retreat to the wall,’ both gunfighters continuously stride toward each other and often toward the camera, which frequently alternates between them to build suspense. In Western literature as well, climactic shootouts are portrayed through a tightly controlled narrative perspective that not only directs the reader’s sympathy toward the hero, but also ensures that the hero’s gun violence is portrayed as defensive. As the narrator of Wister’s The Virginian would have it, the eponymous hero kills his antagonist in ‘reply’ to Trampas’s initial assault.40

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In her study on star personae, Creating the Couple: Love, Marriage, and Hollywood Performance, Virginia Wright Wexman has argued that the cinematic shootout contributes to the sexualization of the male film star acting as hero because of the way this generic shot pattern resolves narrative conflict by integrating fractured bodies and spaces in a single, triumphant shot: The shoot-out most often occurs in the competitive space of the town rather than the inviting emptiness of the landscape. This climactic event often involves the protagonist with a villain who is portrayed as a double of himself. The venerable Western convention of white hats and black hats, although hinting at the repressed issue of racial difference at one level, at another level highlights one’s sense of the deep similarity between the antagonists that lies beneath their surface differences. The fragmentation of the hero’s body that is implied by the presence of the double is reiterated by the fragmentation of the space that the shot-reverse-shot pattern of the shootout effects. The triumphant quality conveyed by the resolution of these scenes of violent confrontation is in part created by the camera’s reintegration of the space and its positioning of the hero as the single dominating figure.41

Certainly, Wexman’s conception of the shootout as the triumphant reintegration of the hero’s body explains much about the iconic power of the Western film star—John Wayne in her example—as a figure fit for sympathetic emulation and romantic identification on the part of viewers. The genre’s representation of heroic masculinity is indelibly linked with a man’s willingness to stand his ground and face his antagonist in a public space. I would stress, then, that the shootout reiterates as well the American self-defense doctrine’s personal conception of self-defense as an individual right. In his analysis of Shane, Matthew Carter points up the importance of continuity editing in the design of such scenes that reify the gunslinging hero’s gunplay as ‘defensive’: As Shane and Wilson standoff against each other, the establishing shot is on Wilson as he draws his gun, a reverse shot is immediately employed, revealing Shane reaching for his holster. Presumably they both draw at the same instant (as two highly skilled and experienced gunmen, seeking to draw first, that is, as quick as possible, would surely be the only way for each to ensure the best chance of their own survival), but the point to remember here is that, through a deliberate editing contrivance, Wilson is seen to make a move to draw first. This has the effect of positioning him as the aggressor, whereas Shane, drawing ‘second’ (only faster) occupies the moral high ground. Hence, Shane ‘speaks’ the ‘language’ of the genre, and



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Shane’s slaying of Wilson and the Rykers (the epic moment) equates the hero’s violence (his coded use of force) not with an act of aggression (which, ultimately it is), but with an unavoidable and noble defense of the values of American civilization.42

These editing contrivances work to fragment the individuals within such scenes and to subsume the complex issues for which they are facing off into a test of putative manliness between nearly equal combatants. This fragmentation and alternating shot pattern not only portrays the hero’s violence as an ennobled defense, but also crucially highlights the plight of the alienated individual, thereby portraying defensive gun violence as an individual moral prerogative instead of as a collective duty. In other words, the switch from one antagonist to another and then back again individualizes the issue of gun violence and affirms the conception of defense as an individual right. Clearly, then, American self-defense doctrine ought to be properly viewed as one of the crucial ‘values of American civilization’ at stake in the genre’s celebrated shootouts. The shootouts’ doubling of hero and villain, along with the hero’s triumph, serves further to provide a sense of moral justification of the means by which, and the ends for which, such personal gun violence is utilized. The fragmentation of the individual in extreme close-ups further highlights the specialization and disciplining of the individual body, underwriting a normative conception of not only the right moment at which to kill a man or the right way to do it, but also policing the use of gun violence and establishing a normative regimentation regarding who has the right to utilize the gun. The variety of narrative justifications that lead up to this climactic moment also distinguish the hero from the villain, implicitly arguing that a ‘real man’ fights only certain fights, and will kill only on behalf of a ‘just’ cause. For it is often the case that the hero seeks out this confrontation, frequently on behalf of an initial injury suffered by another. In this way the gunslinging hero acts as an intermediary of sorts between aggrieved parties. Despite the cherished antipathy to ‘the law’ seen by so many as a defining feature of the genre, then, the stylized gun violence with which the gunslinger as mediating figure resolves conflicts in the Western genre has, in fact, much in common with the idealized vision of ‘the law’ as a purely objective, utilitarian form. The hero’s specific skill with a gun, whether it is marksmanship or speed, suggests a certain training, a detached professionalization. Moreover, the meticulousness with which the gunslinger applies the tool

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of his trade symbolizes a detached, almost objective control and supreme discipline. This aesthetic control that is tantamount to an almost surgical precision is suggested not only by the clichéd shooting of an assailant’s gun out of his hand or the hat off his head, but also by the relatively hygienic portrayal of deaths over most of the genre’s history.43 Until the dominance within the form of the revisionist or ‘anti-Westerns’ of the 1960s and 1970s, little blood was spilled and most villains died quietly, quickly, from what would in reality be horribly gruesome, immensely bloody wounds causing drawn-out, anguished deaths. In summary, equally important to the evolution of American self-­ defense doctrine and the Western genre stands an idealized image of individuals who are able to exercise the right to defend themselves but to do so in a controlled, disciplined manner. In the respective contexts of self-defense doctrine and the Western genre, this ideal individual has long been thought to embody principled masculinity, to have been unequivocally male and Anglo, reflecting a romanticized patriarchal image that has categorically disenfranchised women. Quite simply, women and racial and ethnic minorities have been excluded from exercising the justifiable violence of the Western’s normative masculinity for most of the genre’s history. To begin to account for the Western’s idealized gender order and the restriction of justifiable violence to men, let us consider Westerns that have quite explicitly considered extending the genre’s violent masculine prerogative. Nicholas Ray’s Johnny Guitar (1954), for example, gives its two leading women guns only to ultimately suggest that gun violence is more properly a masculine mode of dispute resolution. Their use of gun violence is represented as a threat to the masculine order (see Figure 15). The film revolves around the financially and romantically independent Vienna (Joan Crawford). Vienna’s successful gambling saloon sits on land made very desirable by the incoming railroad. The nefarious plot to force her off this land is fueled as much by economic speculation and mob mentality as it is by sexual jealousy, symbolized by the frenzied, hysterical pursuit spearheaded by Emma Small (Mercedes McCambridge). The help afforded Vienna by the eponymous ‘Johnny ‘Guitar’ Logan (Sterling Hayden) underscores the gendered normativity of the Western’s representations of justifiable violence and is evident in the costuming. When the film opens, Vienna appears wearing pants and a gun belt. Although it is clear that Logan and Vienna share a romantic past, he, like all the other men in the film, is significantly intimidated by



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15  Joan Crawford as Vienna in Johnny Guitar, 1954

the powerful, gun-toting Vienna. The threat she poses to the traditional patriarchal order of property ownership and privilege, symbolized by her masculine clothing, is made clear when Johnny comes to her aid and she is wearing a white dress. Signifying purity and chastity, this white dress reorients the traditional gender hierarchy so that Johnny can now fight on her behalf. With Johnny the reluctant gunfighter now securely protecting a woman, the gendered hierarchy of violence is secure enough in the film that Vienna can end up in a bright red shirt and pants again.44 The ending shootout scene simply punctuates the normative conception of justifiable violence in the film; although the conflict all along has been between Vienna and Emma, the ultimate, decisive resolution of this conflict comes, in no small part, through Johnny’s gunslinging heroics. Following the logic of this film, and that of innumerable other Westerns—Destry Rides Again (1939), for instance— not only is it unmanly to not utilize gun violence to resolve a dispute, but it is also ‘unnatural’ for a woman to do so. In short, these films argue that a woman— like morally corrupt men and seemingly anyone not an Anglo—cannot be trusted with a gun. The racialized hierarchy of gun violence in the Western is a well-noted

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and oft-discussed aspect of the genre. Most conspicuously, the Native Americans portrayed within the genre are stereotypically subsumed into the narrow confines of ‘Indians,’ a representational strategy under which distinctive cultural differences between separate indigenous tribes become mashed into an abstracted, reified savage foil against which the Anglo hero often demonstrates his more disciplined gun violence. ‘Mexicans’ are also often utilized similarly within the genre as the distinctions between the indigenous peoples of the Southwest, the European colonizers, and the Mestizo are generally occluded. The representations of ‘Mexicans,’ however, differ within the genre in that they usually symbolize idleness, cunning, and heightened sexuality. Certainly these representational tropes are an integral part of the genre’s history, and a fuller analysis of the intersections of race, sex, and class at play in these representational strategies would be a welcome addition to the present project. To further outline the correspondence between American self-defense doctrine and the gendered normativity of the Western that disciplines this personal gun violence, we should also briefly consider here the ubiquity of plots wherein a woman is taken hostage or held captive. In novels like James Fenimore Cooper’s The Last of the Mohicans (1826) and Zane Grey’s Riders of the Purple Sage (1912), as well as films like The Searchers (1956) and beyond, the genre is rife with plots that turn on the plight of a defenseless woman. Beyond suggesting that women—significantly, white women—need protection from the savagery symbolized by Native Americans, these plots implicitly discourage women from acting in their own defense. This virtual disarming of women has significant connotations for the idealized gender order imagined within the genre. Chiefly, the delegation of ‘protection’ to an idealized masculine action buttresses a gender dynamic that demands separate spheres for masculine and feminine behavior. Within this dynamic, the public spaces of the street, the saloon, and the range are the domain of men and the private space of the home is relegated to women. This dynamic has further connotations for representations of violence within the genre. On the one hand we can see that, as a putatively masculine action, climactic gun violence traditionally occurs in the same public spaces: the street, the saloon, the open range. On the other hand, these gendered spaces explain the visceral horror the genre attaches to the violation of the home. One thinks here of the hysterical scream, captured in a dramatic extreme close-up, of little Lucy Edwards (Pippa Scott) near the beginning of The Searchers when she anticipates the



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16  Pippa Scott as Lucy Edwards, horrified in The Searchers, 1956

massacre of the Edwards homestead that will quickly ensue off-screen (see Figure 16). The moment is so dramatic and powerful because her terrified scream not only encapsulates the genre’s fear of home invasion, but also metonymically provides the viewer with all the information needed to know that the horrific carnage of her rape and murder will be discovered in the next scene. As the purview of women, the home in the Western is by definition a vulnerable place. As noted previously, this is perhaps one reason for the frequency and utility of the genre’s much-rehearsed scene transition, ‘meanwhile, back on the ranch.’ The restrictive gender dynamic at work here explains in part the ubiquitous trope within the genre of frequently bringing the viewer back to check in on this space, a space rendered vulnerable, defenseless, because the men are elsewhere. The loosening of this gender dynamic by the early 1960s also helps to explain the Western’s loosening hold on the popular imagination. The decline of the Western’s popularity also evinces the changed political climate in the wake of the social turmoil of the 1960s. Long the cultural outlet for American public musings about the limits of justifiable violence, the Western’s popularity began to wane in the mid-1960s and fell precipitously during the 1970s. Given the genre’s preoccupation with representations of justifiable violence, it seems counterintuitive that the Western would fall from public favor in the 1960s and 1970s. These decades witnessed a spate of domestic assassinations, urban crime sprees, paradigmatic changes in race relations, and an increasingly unpopular

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and widely televised war in Vietnam; this would seem a perfect time for the Western’s serious engagement with the limits of violence if there ever was one. Other genres, however, replaced the Western at the pinnacle of American popular culture, especially in film. The repeal of the industry’s Production Code in 1968 gave filmmakers ever broader artistic license with which to depict and glamorize violent spectacles. The popularity in the 1970s of graphic violence in a number of other genres suggests that the public’s predilection for violent fare had far from abated.45 Given the popularity of the increasingly violent films that replaced the Western in American popular culture in this tumultuous political climate, it is perhaps the very limitations implicit within the genre’s exhibition of violence that explain the shift in the American public’s entertainment tastes. As I have argued throughout this book, the Western operated as a cultural text that filled a public need for engaging the limits of justifiable violence. It makes sense, then, that the genre’s formal and normative restrictions on the exhibition of violence would seem out of touch when the ascendancy of Anglo masculinity came to be successfully challenged by the social and political advancements of the women’s and Civil Rights movements. In summary, the gendered restrictions within the Western’s normative imagination of justifiable gun violence proved ill-suited in an era when traditional gender roles were effectively loosening. I have been discussing the interwoven relationship between the American Western genre, American jurisprudence surrounding gun possession and self-defense, and the interdisciplinary norm of Anglo masculinity that has served as linchpin for these discursive regimes’ intersections. Therefore, it is important to be explicit here that this contextual moment is one of dissonance between the cultural and ideological shifts occurring in American society and the Western’s long-established expression of Anglo ascendancy. Simply put, following Gallagher and Carter, I do not deny that the genre has exhibited reservations and worries about the suitability of this gunslinging hero at almost every moment in its history. I would, however, stress that the paradigmatic shifts in economic, social, and juridical spheres during the 1960s more directly confronted the genre’s idealized image of ennobled, defensive gun violence as the sole prerogative of Anglo males. While Philip French has noted the genre has always been a ‘charming anachronism,’ suffice it to say here that the anachronistic figure of the Western gunslinger was very viscerally felt at the time to have lost its charm.46 A demonstration of this sense of the Anglo American Western hero’s incompatibility with



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the times is keenly expressed in a pivotal film from this period, John Ford’s The Man Who Shot Liberty Valance (1962). This film has been profitably read by numerous scholars, making it almost a touchstone film for any extended examination of the genre. I will not rehearse here these many very productive contributions. Instead, I add to this running conversation by considering the film’s demonstration of the way the Western’s genre’s representations of masculinity and the expanding legal sanctions for private gun violence have long worked in concert. The Man Who Shot Liberty Valance demonstrates this beautifully, upsetting the notion that ‘Western law’ or ‘the law of the gun’ is opposed to a less violent, more egalitarian system known as ‘the law.’ I have also chosen the film because it represents crucial turning points in both the American legal system and the Western, for The Man Who Shot Liberty Valance is a story that resonates with two important settings. The point, then, of this brief reading will be to argue that the Western genre, and its many ‘legends,’ instead of merely ‘reflecting’ changes in the law or public sentiment, are better seen as functioning in conversation with these other cultural domains. Like most Westerns, the action in The Man Who Shot Liberty Valance takes place largely near the end of a pre-technological era of the late nineteenth century when the United States was expanding westward. The film’s town of Shinbone thus stands on the cusp of an epic transition toward full incorporation within the American legal system. John G. Cawelti has designated this historical setting as the genre’s ‘epic moment.’ Although relatively brief in actual history, this period is important for the Western’s idealization of American civilization and its dramatic rendering of ‘that point when savagery and lawlessness are in decline before the advancing wave of law and order.’47 For our purposes, this period is most significant as a crucial turning point in American self-defense doctrine. I have covered the development of this doctrine in detail in Chapter 2 above, but a brief summation is appropriate here. During this period, self-defense was emerging as an increasingly broad and pliable justification for violence as American jurisprudence began to reject any obligation to retreat from a confrontation. In 1876 the Ohio Supreme Court, as we have seen, found a man who killed another in a dispute over storage space in a shed to be a ‘true man’ legitimately acting within his rights, and therefore not guilty of murder.48 Despite the genre’s cherished antagonism between the ‘law of the gun’ and ‘law and order,’ that American self-defense doctrine transformed contemporaneously with the Western’s iconic setting undermines this

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opposition. The film’s anxiety over the title’s attribution of the man who shot Liberty Valance is contemporaneous, however, with paradigmatic shifts in racial and gender politics of the 1960s. The film thus looks forward to the social rejection of the genre’s Anglo masculine heroism, a rejection that would dramatically diminish the Western’s popularity, even if only temporarily. Based on a Dorothy Johnson short story and adapted by the screenwriting team of James Warner Bellah and Willis Goldbeck, The Man Who Shot Liberty Valance consists of a funeral episode which frames a long flashback sequence.49 The framing narrative brings a prominent senator and his wife to the small town of Shinbone to pay their respects to the recently deceased Tom Doniphon. Shinbone’s newspaperman demands to know why Senator Stoddard, played by James Stewart, has returned to remember a long forgotten man. Stoddard’s flashback tale thus serves not only as a eulogy for Tom Doniphon, played by John Wayne, but also reveals that the attribution of the film’s title has been misplaced. At the start of the flashback, Stoddard, an idealistic young Eastern lawyer, is robbed and savagely beaten by Liberty Valance, played by Lee Marvin (see Figure 17). Arriving battered and poor in Shinbone, Stoddard sets out to right this injustice. Initially, he aims to stop Valance via the administration of courtroom justice. Over the course of this protracted episode, however, Stoddard abandons his commitment to the due process of American law, and attempts instead to dispatch the villain by way of the gun. Stoddard’s resort to a shootout serves to lionize him in the public eye, immortalizing him as the man who shot Liberty Valance. The conclusion of the flashback, however, undermines this accolade. Although legend has long had it that Ransom ‘Ranse’ Stoddard killed Liberty Valance in self-defense during a shootout, Stoddard reveals that, in fact, Tom Doniphon murdered Liberty Valance in ‘cold blood.’ When Stoddard reveals the facts which belie his legendary status, the newspaper editor refuses to print this revelation, explaining that ‘This is the West sir; when fact becomes legend, print the legend.’ The ‘legend’ here is that of a man committed to mediated courtroom justice but brave enough to stand his ground against capricious violence which threatens a democratic order. The ‘facts’ reveal instead an act of murderous, personal violence committed by another man that undermines ‘the law.’ The distinction between these two versions of events—one legendary and the other factual—is fundamental to the Western’s cherished opposition between the law of the gun and the mediated American legal system: to claim moral superiority, ‘the



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17  Lee Marvin as Liberty Valance, preparing to whip James Stewart as Ranse Stoddard, in The Man Who Shot Liberty Valance, 1962

law’ must disclaim personally motivated violence and seek instead to retain punishment as the sole prerogative of the putatively unbiased state. The editor’s injunction, however, is deeply ironic, for although he claims only to print ‘the legend,’ the film’s extended flashback sequence has, in a manner of speaking, also printed the ‘facts.’ Printing both the legend and the facts, the film troubles the polarized opposition between American law and the law of the gun. What is more, the presence of two versions of the man who shot Liberty Valance indicates how much is at stake in choosing one or the other. Liberty Valance is an important touchstone for the film’s juxtaposition of alternate masculinities. Valance represents a residual ideal of masculine power whereby might equals right. His first name suggestive of unchecked freedom, Liberty, with his vicious temper and penchant for administering beatings with a whip, rather clearly enforces an order wherein brute strength reigns. The film employs a number of strategies to underscore the threat Valance embodies. Reaction shots stress his reputation as a brutal thug. There is rarely a moment in the film when the name Liberty Valance is mentioned that is not immediately followed by a shot of a terrified inhabitant of Shinbone, wide-eyed, repeating the name with trepidation: ‘Liberty Valance?!!’ Although several scenes demonstrate that Valance is everywhere intent on bullying the citizens, the threat he imposes on Shinbone is highlighted by the sadistic pleasure he derives from his violent actions.

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The two scenes in which he beats Stoddard and Peabody with his infamous whip stress not only his physical strength, but also the excessive nature of his violence. He has no ostensible reason to whip either man, as both are already completely defeated, lying powerless, and putting up no fight. Furthermore, each time Valance applies his whip, the camera frames him in close-up, obscuring the victim from view and emphasizing instead the excessive force with which Valance whips both Stoddard and Peabody.50 The unrestrained violence of Liberty Valance is opposed most fully in the figure of Ranse Stoddard. Whereas Valance represents a residual social order maintained by physical strength, Stoddard—the man of the future—symbolizes an emergent, less repressive society structured around the egalitarian commitments of an American legal procedure derived from European models. The Eastern ‘dude,’ or ‘tenderfoot,’ who comes west and is initiated into an order of violence has been a staple of the genre. What makes Ranse Stoddard stand out, though, is his continually espoused high-minded commitment to the abstract ideals of American-style law. As the law books that Valance attempts to destroy during the robbery make clear, Stoddard is associated with codified legal ideals throughout the film, and he is continually derided as a futile figure. Somewhere between the order of brute strength represented by Valance and the mediated legal procedures embodied by Stoddard lies the character of Tom Doniphon. Doniphon represents the Western’s prevailing masculine type, a masculinity that still very much adheres to the idea of personal liberty and believes in the value of violent confrontation. He is therefore closer to Valance than Stoddard because he maintains a commitment to the personal resolution of disputes; as he points out early on, ‘Out here we fight our own fights.’ At heart he remains committed to gun violence and, like Valance, has little respect for the codified abstractions of American law.51 Occupying an intermediate position between Valance’s brutality and Stoddard’s effeteness, Doniphon’s willingness to commit gun violence is the norm for the genre’s heroes who repeatedly use guns to solve disputes. The distinctive masculinities that Valance, Doniphon, and Stoddard represent are underscored by each man’s weapon of choice. Liberty Valance is associated with a silver-tipped whip; Ranse Stoddard is linked to legal abstraction; Tom Doniphon relies on a gun. Valance’s whip is a highly symbolic weapon. As Jim Kitses has pointed out, ‘As weapons go, the whip is the source of spectacularly brutal and personal violence



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… as in its use with slaves, the whip carries the charge of a sadistic domination and invasive punishment.’52 The film posits Valance and his whip as more brutal certainly than Stoddard and his law books, but also more primitive than Doniphon and his gun. The distinction between Doniphon and Valance depends on this equation between the whip and Valance’s brutality. While both represent an exercise of force and power, the use of a whip is a matter of physical strength, while a gun relies far more on skill. The skill, training, and above all discipline symbolized by the pistol’s relative efficiency, as opposed to the physical brutality of strength and force encoded in a whip, is of paramount importance for the genre’s coding of gun violence as a defense of the values of American civilization, in particular the ‘value’ of defensive personal gun violence as justifiable. The Western’s negotiation of gun ownership is coded as a matter of masculine maturity. In other words, a ‘real man’ not only carries a gun but also knows properly how and when to use it. An early scene wonderfully illustrates this equation between masculinity and gun violence, as Doniphon condescendingly dismisses Stoddard’s commitment to American law, suggesting instead he will need a gun. The shot pattern in this scene underscores this association between masculinity and guns. Stoddard is captured from a high angle, which emphasizes his hunched posture, torn clothes, beaten face, and Stewart’s hesitant, stuttering delivery. Doniphon is presented in medium shots which emphasize his casual stance and rugged clothing, Wayne’s deliberate delivery of his lines punctuated by the twirling, tossing, and patting of a pistol with which he is obviously proficient. Furthermore, the scene, along with several others, works conspicuously to feminize Stoddard’s commitment to law and order by associating this ideal with two women working in the kitchen. Liberty Valance’s death satisfies an emotional need within the narrative. The film stages this event twice, though, suggesting an underlying anxiety over the status of the hero and the hypocrisy of his ensuing reputation. The first version of the shootout follows the accepted generic pattern. As Stoddard walks down the street, Valance comes out of the saloon and the camera proceeds to alternate between medium shots of the two as they advance toward each other. At the critical moment, the camera pulls back to a long shot behind Stoddard. It is from this angle, from behind Stoddard, that we see Valance get shot. Given the earlier establishing shots which demonstrated that these were the only two men on the street, it is clear in this staging of the shootout that Stoddard has shot Valance, and done so in self-defense (see Figure 18).

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18  Shootout between James Stewart and Lee Marvin as Ranse Stoddard and Liberty Valance in The Man Who Shot Liberty Valance, 1962

This orchestration of the shootout situates it within the realm of American notions of self-defense. After all, the frontier town of Shinbone and the killing of Liberty Valance is a story set in the late nineteenth century when the American legal system would begin to transform the limits of justifiable homicide. Both Valance and Stoddard would have been allowed to own guns, and likely would have been permitted to carry them around on the streets. If either was attacked, he would have been within his rights to stand his ground and kill his assailant. With both men being armed and both men facing each other, this would have been a ‘fair fight.’ Occurring in a public space with numerous witnesses, this shootout, in short, was legal. Even though Stoddard has ‘called out’ Valance, the court of public opinion in the town of Shinbone is decidedly in his favor. Ranse Stoddard will not be found guilty of murder. In fact, when Liberty Valance is shot, the town celebrates and the shootout scene ends with people literally dancing in the streets. When Doniphon later reveals that he is the one who actually killed Valance, the film restages this shootout scene (see Figure 19). This time, though, we are shown how Doniphon shoots Valance to make it look like it was done by Stoddard, and the restaging of this scene breaks from the genre’s conventional representation. What we see here instead is an extreme long shot from the other side of the street, a side completely obscured in the earlier staging of this scene. This extreme long shot captures both Stoddard and Valance in the background and shows



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19  John Wayne as Tom Doniphon, ambushing Lee Marvin as Liberty Valance in The Man Who Shot Liberty Valance, 1962

Doniphon in the foreground. Demonstrating that Doniphon shoots Valance, not exactly in the back, but certainly not in a ‘fair fight’—in analyzing the scene Robert Pippin rightly emphasizes that Valance is ‘ambushed’ here—this staging portrays Doniphon’s action as ‘coldblooded murder.’53 Despite this narrative demonstration of his status as the man who shot Liberty Valance, the film cannot quite morally endorse Doniphon. As I mentioned before, I see this film as a marker of two important historical moments, and I read the presentation of Doniphon’s actions as murderous as an indictment of the Anglo American masculinity John Wayne had come to represent in the public imagination. Having been unmasked as a cold-blooded murderer, Doniphon’s status as a heroic gunslinger becomes ambiguous and indicates a paradigmatic shift in social values. Wayne’s persona adds significant connotations to his performance as Doniphon.54 By 1962 the values Wayne’s persona so viscerally embodied were seen as anachronistic in an increasingly alarmist register, as the civil rights struggle pushed this country into new understandings of race, gender, and equitable citizenship. The film suggests Doniphon’s values are out of step in two ways. Most prominently, the presence of veteran African American actor Woody Strode as Pompey, Doniphon’s ‘boy,’ codes Doniphon as, if not a slaveholder himself, at least open to rationalizing slavery and segregation. Principles of racist and sexist hierarchies which were enshrined within

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20  Woody Strode as Pompey, in class in The Man Who Shot Liberty Valance, 1962

the American legal system that worked to secure private gun violence for whites and exclude African Americans from definitions of citizenship figure quite strongly here in this film’s meditation on the unsuitability of Tom Doniphon as the proper ‘heroic savior’ of the town of Shinbone. Even though he is not allowed to drink at the local saloon, Pompey, along with women and Mexican children, participates actively in Stoddard’s egalitarian schoolroom. Pompey is called on by Stoddard to identify the ‘basic law of the land … which has to be added to from time to time with things called amendments.’ As he rises from his seat, Pompey is framed in a medium shot, the background of which conspicuously features a portrait of Abraham Lincoln (see Figure 20). Stoddard’s question refers to the US Constitution, and Pompey identifies the document appropriately. Remarkably, though, the pedantic Stoddard corrects Pompey, telling him that the ‘basic law of the land’ is the Declaration of Independence. Pompey then begins to recite ‘we hold these truths to be self-evident, that … that. …’ Pompey isn’t given a chance to finish, as Stoddard interjects by concluding ‘that all men are created equal.’ Pompey apologizes, stating that he ‘Plumb forgot that part.’ Stoddard’s concession that ‘a lot of people forget that part’ reveals the film’s somewhat muted recognition of racial struggle. This history of racial struggle is connected to Doniphon when he enters the schoolroom and orders Pompey back home to work, adding that Pompey has



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been ‘wasting his time around here.’ Doniphon’s dismissal of Pompey’s aspirations to obtaining an education clearly signifies his commitment to a racialized hierarchy of Anglo dominance. Doniphon’s masculinity is also revealed in this schoolroom scene to depend on an oppressive form of sexism, a gender dynamic that will ultimately lead Hallie (Vera Miles) to reject him. The Man who Shot Liberty Valance presents Stoddard and Doniphon as adversaries for Hallie’s affections. The romantic subplot is thus integral to the film’s commentary on the racial and sexual values that were contemporaneous with its release and the other means by which Doniphon’s values are portrayed as out of step. Doniphon courts Hallie in service of his desire to build a dynastic patriarchal blood line indelibly associated with the possession of land and a gender dynamic advocating separate spheres for men and women.55 Stoddard, on the other hand, represents a more egalitarian companionate marriage with an attendant loosening of gender roles. The two opposing gender dynamics are made explicit in Hallie’s rejection of Doniphon. In the schoolroom scene, having just dismissed Pompey, Doniphon attempts to similarly dismiss Hallie’s education: ‘Hallie, go on back where you belong. I don’t want you goin’ to school.’ Hallie’s reply signifies her emergent sense of independence, brought about significantly by the alternative, egalitarian choice Stoddard represents: ‘Now you listen to me, Tom Doniphon. What I do and where I go is none of your business. You don’t own me.’ Filmed in a medium shot which captures her impassioned declaration with an American flag visible in the background, Vera Miles’s performance here places special emphasis on the word ‘own’ (see Figure 21). The stress on ownership hints at the property issues at stake in Doniphon’s pursuit of Hallie, but given the semantic richness of Pompey’s recent dismissal it also links to Doniphon’s racial and sexual bigotry. Hallie’s choosing Stoddard is therefore a rejection of Doniphon’s masculinity, a rejection that would resonate with the 1960s paradigm shifts in racial and sexual ideologies. The Western’s popularity fell precipitously during the 1960s and 1970s as its racial, sexual, and imperial ideologies—along with its predilection for settling disputes through gun violence—fell out of fashion and the public taste for frontier tales of heroic gun violence began to wane. Furthermore, other paradigmatic shifts were also afoot. By the end of the 1960s firearm regulations would become hotly contested as influential lobbies and interest groups would forever change the shape of American politics.56 By the end of the 1970s, many of the discriminatory provisions

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21  Vera Miles as Hallie Stoddard, in class in The Man Who Shot Liberty Valance, 1962

of American self-defense laws would come under fire from feminist legal challenges.57 Emerging in tandem at the turn of the twentieth century, the Western and American self-defense doctrine had evolved in parallel for nearly a century, but the cultural landscape of the 1960s and 1970s would prove simply too expansive for the Western’s conception of normative masculinity and its dependence on the ritualized shootout. In other words, the genre’s endorsement of personal gun violence as an always already ennobled defense was less and less readily justifiable in this era. Both reflexive and strangely prescient, The Man Who Shot Liberty Valance ultimately rejects Doniphon as the hero not only by demonstrating that he commits ‘cold-blooded murder’ but also because he embodies a set of racial and gendered commitments that were slowly declining in 1962.On the other hand, the film cannot quite endorse Stoddard’s moral character. The Eastern lawyer cannot uncritically claim the mantle of the man who shot Liberty Valance because his legal commitments mark him as an effeminate meddler in the putatively more manly personal resolution of disputes. Furthermore, Stoddard builds a life on a legendary deed he did not perform, this hypocrisy confirming the film’s anxious suspicion of the manufactured abstractions of a codified law. And yet, the final line of the film, ‘nothing’s too good for the man who shot Liberty Valance,’ refers unambiguously to Stoddard, confirming the newspaperman’s commitment to the legendary image of a man



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willing to stand his ground and resort to a kind of gun violence which is both narratively, and legally, justifiable. The image of this man, the film suggests, is more important than the reality behind that image. The film reveals that, despite the facts, the attribution of the man who shot Liberty Valance retains a legendary status. Gene Pitney’s hit song, ‘The Man Who Shot Liberty Valance,’ is another indication of the relative importance of an act of bravery, of ennobled self-defense, as opposed to the more sordid reality of the commission of murder. Pitney’s lyrics nowhere mention either Stoddard or Doniphon; what matters in the song’s championing of the man who shot Liberty Valance is only that Valance was dangerous and someone was brave enough to stand up to him. We see here, then, an instance of contradictory cultural texts telling the same basic story, for Pitney’s popular song is an unambiguous celebration of this attribution. While the film worries, quite pointedly, as I have been arguing, over the relative worth of a legend built on fabrication, the song seems only concerned to celebrate ‘the legend.’ It is worth repeating: the only important lesson in the song’s championing of the man who shot Liberty Valance is that Valance was dangerous and someone was brave enough to stand his ground and meet the villain face to face in a shootout. We see in Ford’s film, finally, that the importance of this attribution is due not to a man who stands in clear opposition to either a lawless, unbounded liberty or a mediated administration of law and order. Rather, the man who shot Liberty Valance remains legendary because he stands at the juncture of legal sanction and social mores, representing US culture’s deeply embedded—even if hotly contested—commitment to private gun violence. The cinematic Western’s portrayal of Anglo American masculinity as a normative disciplinary supplement to the formal discourse of the American legal system depends on a particular style of violence, a form of violence as much restrained as it is swift and effective. This is the normative cultural work the genre has performed alongside formal legal discourses, work that has endorsed a particular style of masculinity as a disciplining of the potential for excess enabled by American self-­defense doctrine. Before moving in later chapters to further examining the continued saliency of the Western genre within these entwined discursive regimes, I would like to close this chapter’s examination of Anglo American masculinity in the Western genre with a brief reading of another of John Wayne’s notable performances. More than any other of the leading men or typecast actors who would enact the Western’s normative conception of masculine violence—Randolph Scott, Gary

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Cooper, Clint Eastwood, Joel McCrea, William Holden, Ernest Borgnine, Henry Fonda, and many others—John Wayne set the standard for the genre and is most readily identifiable as a star of Westerns. Wayne’s persona relied on a palpable threat of physical violence. In most of the hundreds of films in which he appeared, the actual depictions of violence are rather muted. His power seems to emanate more from the threat of violence than from any harm he has been shown to enact. There is certainly a cumulative, intertextual, and residual effect of his numerous formulaic performances insofar as his presence embodies a promise of swift, powerful, and above all decisive violence. What is remarkable about his persona, however, is that Wayne’s physical mannerisms are actually more attuned to taming or disciplining violence. Such mannerisms, such as his slow, deliberate line delivery and his controlled and graceful movements, constitute a performance not of excess but instead of restriction and control. The formulaic plots of his Westerns guarantee that he will be pushed too far. His manly restraint will give way and he will be unleashed to perform terrible violence, justified as much by the plot machinations as by his conspicuous exhibition of control. To end, then, with the normativity of masculine violence as embodied and performed by John Wayne, let us turn to his last film, Don Siegel’s elegy for Wayne and the Western hero, The Shootist (1976). Featuring Wayne’s final performance before he lost his own battle with stomach cancer, The Shootist is cinematographer Bruce Surtees’s beautifully photographed eulogy for the dying star, populated by a remarkable cast of Western stalwarts. The film tells the story of J. B. Books, a notorious gunman, and his final seven days. In 1910 he rides into a modernized Carson City—complete with telephones, cable cars, and electricity—to consult with Dr. Hostetler (Jimmy Stewart) about his failing health. The doctor confirms that Books has cancer, telling him he has very little time before he will succumb to a gruesome and excruciating death. Devastated by the news, Books decides to stay in his temporary lodging at a boarding house run by the Widow Rogers (Lauren Bacall) with the grudging assistance of her teenage son, Gillom (Ron Howard). As the town learns of his presence, Books’s health steadily declines and most of the film is confined to indoor shooting in a cramped room, a space dominated by the immense Wayne, even though he is seated in many of the scenes. As more and more folks come to ‘visit’ Books, all with an ulterior motive that is in one way or another connected



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to profiting from his presence, death, notoriety, or some combination thereof, Books develops a friendship of sorts with Mrs. Rogers and elicits growing admiration from Gillom until the final scene wherein Books quite literally chooses his own death. Wayne’s performance as Books is more than a subtle and understated performance by one of Hollywood’s most famous actors in his final role. It is a casting decision that allows a character, Books, to function metonymically as a representation of an entire career, a Hollywood icon, and a deeply ingrained American gender norm and ideological concept. As such, the death of J. B. Books is the death of John Wayne is the death of the American Western Hero. Such a self-reflexive strategy ensures that the film will be read as a meditation on Wayne’s persona as much as it is a narration of the character of J. B. Books. Siegel’s own commentary on the casting of this legendary star bears out explicit knowledge of this dual function of the film and its star: ‘One remarkable fact was clear from the start: no one in the world could play the leading role of J. B. Books but John Wayne. … John Wayne was J. B. Books.’58 One commentator has suggested that despite the film’s explicit rejection of the way of life represented by Wayne as J. B. Books—and the attendant rejection of gun violence as a mode of dispute resolution—the most memorable scenes in the film are ‘those in which Wayne can be seen firing away with casual abandon, almost literally writing his name in fire and smoke.’59 Despite the oft-repeated accusation in the film that Books has outlived his time, the most memorable part of such an elegiac funeral piece is its most laudatory feature, the gun-blazing celebrations of the figure the film mourns. The film then, rejects neither Wayne nor gun violence, instead offering a complex artistic engagement with the heritage and social meaning of a powerful gender norm and the gun violence it has long explored and celebrated. This complex interrogation is clear in the opening montage of The Shootist. As the film’s young narrator, Gillom Rogers (Ron Howard), runs through a voice-over catalog of the exploits of J. B. Books, the screen displays a series of clips from Wayne’s earlier Westerns in a montage sequence that substitutes for a more detailed account of Books’s biography. These clips, from Red River (1948), Hondo (1953), Rio Bravo (1959), and El Dorado (1966), serve simultaneously as a diegetic narration of Books’s life and character and as non-diegetic allusions to Wayne’s earlier film roles. As such, this opening montage relies heavily on Wayne’s long career as a template for the development of the character J. B. Books as it explores the complex Western tradition of gun violence.

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The traditional Western conflation of guns and heroic masculinity is especially evident in this series as well. Each of these clips shows Wayne acting the part of a heroic Western gunslinger, unproblematically killing a series of men. Furthermore, the transitions between clips consist of several extreme close-ups of a gun. Gillom’s voice-over narration also connects the man to the gun: ‘His name was J. B. Books, and he had a matched pair of 45s with antique ivory grips that were something to behold.’ This specification of firearms is typical of the Western’s normative function as a technology of citizenship, for it simultaneously identifies a very specific weapon and a very specific man, both held up as models for emulation. It bears passing mention here that this specification is typified in much of the jurisprudence surrounding the Second Amendment, from the conspicuous concern over types and lengths of guns in United States v. Miller to the additional dicta in numerous cases detailing historical gun regulations. This emulation of the specificity of both gun and gender role at work in The Shootist, most persistently narrated there in the relationship between Books and Gillom, however, is made complex from the start by the metonymic association between Books and his two guns. Given the genre’s shorthand, in this case using two pistols to identify a villain, we glean from this opening montage’s fetishization of his pistols that Books can be only a ‘good’ bad guy at best. From this opening celebration the film proceeds to argue that such guns and such men are no longer welcome in society. As the town marshal comments, ‘Books, this is 1901; the old days are gone and you don’t know it … to put it in a nutshell, you’ve plain plumb outlived your time.’ This rebuke is representative of many Westerns that rejected and revised various facets of the violent normative masculinity inherent in much of the genre. What is interesting is that many of these films, like The Shootist, putatively reject the genre’s representation of heroic violence, or at least question its traditional gendered and racial biases, but most often end up presenting gun violence as a satisfactorily conclusive mode of personal dispute resolution. The resolution in the Shootist, however, is the death of Books, the death of John Wayne. Despite the castigation heaped on him throughout the film, his final act—he literally courts death by inviting the most notorious gunslingers in town to a meeting, knowing that each will try to kill him to make a name for himself—is coded by the film as heroic. His control over violence culminates in this scene in that he has, in a sense, beaten death by choosing his own moment and way to die. Significantly, although he has idolized and emulated Books throughout the film,



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Gillom at this moment rejects the way of the gunslinging Western hero, famously throwing the gun away and walking out of the saloon during the extended receding crane shot that ends the film. Dramatically departing from the ending of the novel on which the film was based, this ending presents Gillom as a representative of youth, of modernity, and so his rejection of the way of the gun represents the symbolic rejection of the normative masculine gun violence of the genre.60

Notes  1 Joan Burbick, Gun Show Nation: Gun Culture and American Democracy (New York: The New Press, 2006), p. 15.  2 It is important to note that the complex algorithms that power search engines like Google, Bing, or Yahoo are becoming more and more targeted, directed, and personalized as results are tailored based on previous search history as well as previous browsing history. In short, this means that two individuals using different computers are likely to see different results for the same search terms. Consequently, when I search using terms such as ‘Westerns’ or ‘Guns,’ the results—tailored as they have been to my previous searches—may very well be different from the results of other scholars. Nonetheless, the number of related sites for the search in question here, ‘Western guns,’ is likely to be very large and include many of the manufacturers and advertisers under discussion—albeit in differing order of ‘related-ness’— no matter who is doing the searching.  3 Burbick, Gun Show Nation, p. 12.  4 Jane Tompkins, West of Everything: The Inner Life of Westerns (New York: Oxford University Press, 1992), p. 227.  5 www.americaremembers.com. Accessed July 10, 2017. U.S. Fire Arms (USFA) long held a prioritized position in this market, in no small part because the company manufactured guns ‘under the blue dome’ of the original Colt factory in Hartford, Connecticut. The company, however, folded in 2011, though many of its guns are still very much in demand in the private gun resale market.  6 www.americaremembers.com/product-category/gun-theme/hollywood-​ cow​boys. Accessed July 13, 2017.  7 www.americaremembers.com/product/john-wayne-tribute-rifle. Accessed July 12, 2017.  8 For an interesting analysis of the Western’s ideological support of American Cold War rhetoric, see Stanley Corkin’s Cowboys as Cold Warriors: The Western and U.S. History (Philadelphia, PA: Temple University Press, 2004).   9 For a more contemporary example, readers and viewers may turn to the Disney Channel’s recent series, Sheriff Callie’s Wild West. Similarly saccharine,

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the show’s characters are all anthropomorphic animals, and the issues in the episodes are more often than not propelled by moralistic lessons for children. As an aside, it is interesting to note how decidedly non-violent this show is compared with the earlier Western television series. Here villains are in short supply, and so there is not even the ‘thrill,’ as it were, of triumphantly heroic violence. As a result, the eponymous sheriff, Callie, a cat voiced with a Southern drawl by Mandy Moore, carries no gun. It is instead her magical ‘noodle-lasso’ that is called on to save the day. 10 At the time of this writing, America Remembers was still offering a ‘Roy Rogers tribute’ revolver on their website: www.americaremembers.com/ product/roy-rogers-happy-trails-tribute-revolver. Accessed August 8, 2017. 11 Owen Wister, The Virginian (New York: Penguin Putnam, 2002 (1902)), p. 351. 12 Tompkins, West of Everything, p. 144. 13 Lee Clark Mitchell, ‘Violence in the film Western,’ in David J. Slocum (ed.), Violence in American Cinema (New York: Routledge, 2001), pp. 176–91; p. 176. 14 Lee Clark Mitchell, Westerns: Making the Man in Fiction and Film (Chicago, IL: University of Chicago Press, 1996), pp. 4, 190. 15 Martin Pumphrey, ‘Why do cowboys wear hats in the bath?: Style politics for the older man,’ in Ian Cameron and Douglas Pye (eds), The Book of Westerns (New York: Continuum, 1996), pp. 50–62; p. 52. 16 Virginia Wright Wexman, Creating the Couple: Love, Marriage, and Hollywood Performance (Princeton, NJ: Princeton University Press, 1993), p. 69. 17 The lexicon of scholarship on gendered display in Hollywood is especially vast. Focused primarily on representations of women to clarify her notion of ‘the gaze,’ Laura Mulvey’s groundbreaking essay, ‘Visual pleasure and narrative cinema,’ Screen, 16:3 (1975), pp. 6–18, is an important watershed moment for studies of gendered representations in Hollywood cinema. Steve Neale’s response to Mulvey, ‘Masculinity as spectacle: Reflections on men and mainstream cinema,’ Screen, 24:6 (1983), pp. 2–17, reoriented the discussion to include examinations of male display. Other important contributions to this line of scholarship include Peter Lehman’s Running Scared: Masculinity and the Representation of the Male Body (Philadelphia, PA: Temple University Press, 1993), Kaja Silverman’s Male Subjectivity at the Margins (New York: Routledge, 1992), Carol Clover’s Men, Women, and Chainsaws: Gender in the Modern Horror Film (Princeton, NJ: Princeton University Press, 1992), Yvonne Tasker’s Spectacular Bodies: Gender, Genre, and the Action Cinema (New York: Routledge, 1993), Susan Jeffords’s Hard Bodies: Hollywood Masculinity in the Reagan Era (New Brunswick, NJ: Rutgers University Press, 1994), Steven Cohan’s Masked Men: Masculinity and the Movies in the Fifties (Indianapolis: Indiana University Press, 1997), and Steven Cohan and Ina Rae Hark’s edited collection, Screening the Male: Exploring Masculinities in Hollywood Cinema (New York: Routledge, 1993). Each of these works have aided my examination



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of gendered representations and contributed greatly to my understanding of the social and ideological stakes of masculine display in popular cinema. However, as a continuation of the psychoanalytic perspective first offered by Mulvey, many of their conceptions have masked important historical developments and have failed to account for the interaction of legal discourses in the examination of gendered representations and subjectivities. 18 Robert Warshow, ‘Movie chronicle: The Westerner,’ in Jim Kitses and Gregg Rickman (eds), The Western Reader (New York: Proscenium, 1998), pp. 35–48; p. 47. 19 Barbara Cruikshank, The Will to Empower: Democratic Citizens and Other Subjects (Ithaca, NY: Cornell University Press, 1999), p. 1. 20 Ibid., p. 3. 21 Ibid., p. 41. Cruikshank’s account of productive, expressive freedoms is related to a similar notion of freedom as expressed by Orlando Patterson in Freedom: Freedom in the Making of Western Culture, Vol. 1 (New York: Basic Books, 1991), and Isaiah Berlin’s earlier work Four Essays on Liberty (New York: Oxford University Press, 1969). 22 In his book-length study on multiple masculinities, Masculinities, 2nd edn (Berkeley and Los Angeles: University of California Press, 2005), p. 77, R. W. Connell defines hegemonic masculinity as ‘the configuration of gender practice which embodies the currently accepted answer to the problem of the legitimacy of patriarchy, which guarantees (or is taken to guarantee) the dominant position of men and the subordination of women.’ In designating the apex of a system of gender roles and derivations from a putative norm, Connell follows a long line of scholars working on gender who have demonstrated the multiplicity of masculine gender roles. Much scholarly work now proceeds under the rubric of ‘masculinities’ to break from previous occlusions whereby the singular ‘masculinity’ implicitly denoted a heteronormative Anglo masculinity as the sole male subjectivity. A full accounting of the breadth of the scholarship on masculinities is well beyond the scope of this project. For an overview of this research, see Judith Kegan Gardiner’s introduction to her edited collection, Masculinity Studies and Feminist Theory: New Directions (New York: Columbia University Press, 2002) and the collection edited by Rachael Adams and David Savran, The Masculinity Studies Reader (Malden, MA: Blackwell, 2002). Some compelling studies of literary and cinematic representations of historically contingent masculinities include Jeffords’s Hard Bodies, Sally Robinson’s Marked Men: White Masculinity in Crisis (New York: Columbia University Press, 2000), David Savran’s Taking it Like a Man: White Masculinity, Masochism, and Contemporary American Culture (Princeton, NJ: Princeton University Press, 1998), E. Anthony Rotundo’s American Manhood: Transformations in Masculinity from the Revolution to the Modern Era (New York: Basic Books, 1993), Michael Kimmel’s Manhood in America: A Cultural History, 2nd edn (New York: Oxford University Press, 2006), Phillip

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Brian Harper’s Are We Not Men?: Masculine Anxiety and the Problem of AfricanAmerican Identity (New York: Oxford University Press, 1996), and Lynne Segal’s Slow Motion: Changing Masculinities, Changing Men (New Brunswick, NJ: Rutgers University Press, 1990). The seminal works reading literary representations of masculinity as historically contingent are Eve Kosofsky Sedgwick’s Between Men: English Literature and Male Homosocial Desire (New York: Columbia University Press, 1985) and Epistemology of the Closet (Berkeley: University of California Press, 1990). 23 Cruikshank, The Will to Empower, p. 2. 24 Ibid., p. 4. 25 Michel Foucault, The History of Sexuality: Volume One: An Introduction (New York: Vintage Books, 1990 (1978)), pp. 140–3. 26 Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975–76, ed. Mauro Bertani and Alessandro Fontana, trans. David Macey (New York: Picador, 2003), p. 45. Emphasis added. 27 Michel Foucault, ‘Truth and juridical forms,’ in James D. Faubion (ed.), Power: The Essential Works of Foucault, 1954–1984, Volume 3 (New York: The New Press, 1994), pp. 1–89; p. 15. 28 Foucault’s own conception of subjectivity here is rather similar to, and surely derivative of, the Althusserian model of the constitutive relationship between subjects and ideologies traced out in the widely anthologized essay, ‘Ideology and ideological state apparatuses.’ It is beyond the scope of this project to trace out the demarcations between Althusser and his student. 29 Despite the critical importance of post-structuralist notions of subjectivity, at a popular level the subject is still very much considered as an organic, Cartesian individual. Such Romantic notions of individuality have been so central to our social organization and cultural expressions for so long that the decentered subjectivity of Foucauldian thought has had little popular purchase. In short, completely abandoning the idea that we are all unique and beautiful snowflakes has been a rather bitter pill for most to swallow. 30 Mark Canuel, The Shadow of Death: Literature, Romanticism, and the Subject of Punishment (Princeton, NJ: Princeton University Press, 2007), p. 4. 31 Ibid. 32 Michel Foucault, ‘Politics and the study of discourse,’ in Graham Burchell, Colin Gordon, and Peter Miller (eds), The Foucault Effect: Studies in Governmentality with Two Lectures by and an Interview with Michel Foucault (London: Harvester Wheatsheaf, 1991), pp. 53–72; p. 60. 33 This is perhaps clearest in the normative values of sexuality, the disciplining of sexuality through the conversion of sex acts to object choices with associated identities that has comprised the march of modernity since the Early Modern period. Foucault’s own focus on regimes of biopower lead him to discount ‘the repressive hypothesis’ in The History of Sexuality, and legions of



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scholars have followed his lead to analyze and critique sexual normativity. A full accounting of this tradition is beyond the scope of this book, and certainly cannot be fully appreciated within a note. Michael Warner’s book, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life (Cambridge, MA: Harvard University Press, 1999), has greatly informed my formulation of normativity and I have relied on his insights in order to construct the height and weight hypothetical above. Other works on sexuality and sexual normativity which have been influential to my thinking include Thomas W. Laqueur’s Making Sex: Body and Gender from the Greeks to Freud (Cambridge, MA: Harvard University Press, 1990), Anne Fausto-Sterling’s Sexing the Body: Gender Politics and the Construction of Sexuality (New York: Basic Books, 2000), Jonathan Goldberg’s Sodometries: Renaissance Texts, Modern Sexualities (Stanford, CA: Stanford University Press, 1992), Dwight A. McBride’s Why I Hate Abercrombie & Fitch: Essays on Race and Sexuality (New York: New York University Press, 2005), and Judith Butler’s Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990) and Bodies that Matter: On the Discursive Limits of ‘Sex’ (New York: Routledge, 1993). 34 François Ewald, ‘Norms, discipline, and the law,’ Representations, 30; Special Issue: Law and the Order of Culture (Spring 1990), pp. 138–61; p. 138. 35 Ibid., p. 141. 36 Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Governance (Boulder, CO: Pluto Press, 1994). 37 Ewald, ‘Norms, discipline, and the law,’ p. 154. 38 Runyan v. State, 57 Ind. 80 (1877), p. 84. 39 Erwin v. State, 29 Ohio St. 186 (1876), pp. 24–5. 40 Wister, The Virginian, p. 355. 41 Virginia Wright Wexman, Creating the Couple: Love, Marriage, and Hollywood Performance (Princeton, NJ: Princeton University Press, 1993), p. 110. 42 Matthew Carter, The Myth of the Western: New Perspectives on Hollywood’s Frontier Narrative (Edinburgh, UK: Edinburgh University Press, 2015), p. 37. 43 This clichéd marksmanship is by no means limited to the genre’s hero. In order to function as an ethical or moral foil, and to provide a foe whose death will be worthy of a dramatic climax, Western villains must necessarily display the ability for such precise shooting as well. The chief difference is that the villain employs this accuracy in order to humiliate his victims before killing them, whereas the hero relies on his meticulous accuracy to disarm assailants and thereby avoid killing them. While the genre is replete with examples, The Man Who Shot Liberty Valance (1962) runs away with this doubling, having both Liberty Valance (Lee Marvin) and Tom Doniphon (John Wayne) humiliate Ranse (Jimmy Stewart) with their obviously s­uperior firearm abilities. 44 Though it is a bit heavy-handed, it seems important to note that within Ray’s critique of McCarthyism, Vienna’s bright-red shirt has been interpreted

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widely to also symbolize the supposed communist threat relentlessly pursued by the House Un-American Activities Committee. 45 Though a full catalog of these films and genres is well beyond the scope of the present examination, a few bear mention here: urban vigilante films like Dirty Harry (1971), Death Wish (1974), and Taxi Driver (1976); Halloween (1978) is the seminal film for the re-emergence in this decade of untold numbers of horror films, this time in an especially gruesome incarnation as ‘slasher’ films; The Godfather (1972) is a notably more graphic interpretation of the traditional gangster film; finally, in addition to Deliverance (1972), the 1970s witnessed the emergence of a cult genre obsessively detailing graphic rapes and revolving around revenge, a form which reached its pinnacle in the particularly ghastly I Spit on Your Grave (1978). 46 Philip French, Westerns: Aspects of a Movie Genre (London: Secker & Warburg, in association with the British Film Institute, 1973), p. 47. 47 John G. Cawelti, The Six-Gun Mystique Sequel (Bowling Green, OH: Bowling Green State University Popular Press, 1999), p. 23. 48 Erwin v. State. 49 Dorothy Johnson’s short story, first published in 1953 (Thorndike, ME: Center Point, 2006), is a darker, more embittered revenge tale than the film. Johnson’s Ranse is a more sinister, meaner figure, openly pursuing Valance for personal revenge. Bellah and Goldbeck were frequent collaborators with John Ford, and their scripts often evinced a concern with the American legal system. A prominent example is another film directed by Ford, Sergeant Rutledge (1960), whose plot centers on the false accusation of rape and murder born by an otherwise exemplary African American soldier played by Woody Strode. The film’s plot explicitly turns not only on racial and gender bias but also on the procedural niceties of a trial and the abstractions of a codified legal system, herein represented by a military court martial. 50 Though it could be argued that the camera’s framing of Valance, which again mostly removes the victim from view, was employed in observance of the industry Production Code’s prohibitions against explicit representations of violence, the fact that the camera films Valance head-on suggests otherwise. For more on the Production Code’s restrictions on violent content, see Stephen Prince’s Classical Film Violence: Designing and Regulating Brutality in Hollywood Cinema, 1930–1968 (New Brunswick, NJ: Rutgers University Press, 2003). 51 Patrick McGee has also noted the similarities between Doniphon and Valance in his book From Shane to Kill Bill: Rethinking the Western (Malden, MA: Blackwell, 2007). See also Cheyney Ryan’s essay, ‘Print the legend: Violence and recognition in The Man Who Shot Liberty Valance,’ in John Denvir (ed.), Legal Reelism: Movies as Legal Texts (Urbana and Chicago: University of Illinois Press, 1996), pp. 23–43, and Jim Kitses’s Horizon’s West: Directing the Western



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from John Ford to Clint Eastwood, new edn (London: British Film Institute, 2004), especially pp. 118–25. 52 Kitses, Horizons West, p. 122. 53 Robert B. Pippin, Hollywood Westerns and American Myth: The Importance of Howard Hawks and John Ford for Political Philosophy (New Haven, CT: Yale University Press, 2010), pp. 80–2. 54 For a more detailed look at Wayne’s persona at this time, see Chapter 3 of Wexman’s Creating the Couple. 55 This discussion of the changing gender dynamics in Hollywood romantic plots is drawn from Wexman’s Creating the Couple. 56 For an extended discussion of the polarized politics of gun control see Mark V. Tushnet, Out of Range: Why the Constitution Can’t End the Battle Over Guns (New York: Oxford University Press, 2007). 57 See Jeannie Suk, ‘The true woman: Scenes from the law of self-defense,’ Harvard Journal of Law and Gender, 31:2 (Summer 2008), pp. 237–76. 58 Don Siegel, A Siegel Film: An Autobiography (London: Faber & Faber, 1993), pp. 1–2. 59 Kirk Ellis, ‘The Shootist: Going in style,’ Literature/Film Quarterly, 14:1 (1986), pp. 44–52; p. 51. 60 The film was based on Glendon Swarthout’s 1975 novel with the same title, The Shootist (Thorndike, ME: Center Point Publishing, 2006 (1975), and shot from a script co-written by Swarthout’s son Miles and Scott Hale. The novel ends with the young boy taking up Book’s gun, riding away to carry on his own life of gun violence. There is a clear suggestion in the end of the novel, not unlike the earlier film The Gunfighter, that this choice spells the young man’s doom.

6

‘Deserve’s got [everything] to do with it’: property, process, and justice in Unforgiven That life is complicated is a fact of great analytic importance. Law too often seeks to avoid this truth by making up its own breed of narrower, simpler, but hypnotically powerful rhetorical truths. Acknowledging, challenging, playing with these as rhetorical gestures is, it seems to me, necessary for any conception of justice. Patricia Williams, The Alchemy of Race and Rights1

Virginia Wright Wexman’s Creating the Couple highlights the important role property plays in the Western genre, specifically focusing on how shifts in property ownership during the twentieth century influenced Hollywood’s representations of marriage. She further posits a patriarchal, dynastic conception of property ownership as integral to the Western’s representations of Anglo American ascendancy: The concept of dynastic marriage lies at the heart of Western formula entertainments and of the Western hero whom John Wayne and others embodied. Both the genre and the images of its major stars articulate this thematic through a rhetorical strategy that defines land in terms of property and cultural dominance in terms of racial privilege.2

Wexman argues that this conception of land and property means that the genre sees land as both ‘a place that binds the family together as a physical unit and a source of wealth that binds them together in an economic unit.’3 Furthermore, she rightly observes how property relations dominated by dynastic landownership are also intimately tied to the genre’s negotiation of legal systems: In Western films the law is importantly associated with land rights and more broadly with the way in which land is conceptualized in relation to human



Property, process, and justice in Unforgiven 173 society. In the Western only one law exists—European law—and it reifies a Eurocentric vision of land as property to be passed down among family members … in America, in particular, the ‘law of the land’ is in a significant sense exactly that.4

In my analyses of the Western’s entwined relationship with self-defense and the governance of gun possession in the American legal system, property relations are also especially salient spaces within which the genre troubles justifiable gun violence. In short, the diffuse efficacy and broad resonance of the Western’s notion of property rights has far-reaching implications for the form’s representations of racialized and sexualized subjectivities, most keenly when it is on behalf of these minorities that claims of ‘justice’ are made. In summary, when a claim to justice in a Western becomes explicitly ‘about’ something other than dynastic land possession and the march of Anglo American progress, the game changes. Contra Gallagher’s and Carter’s critiques of the evolutionary hypothesis, then, the Western’s representational and stylistic adoption of claims of ‘justice’ for, and sometimes even from, these racial and sexual minorities does in fact point to the form’s evolution. Furthermore, I argue that viewing this evolution of the genre alongside paradigmatic shifts in the American legal system, most notably but not limited to American self-defense doctrine, further demonstrates one of the structuring theses of this book: the Western is not necessarily either conservative or reactionary. In the case of paradigmatic shifts in the adjudication of self-defense and gun rights in the United States, the genre is instead progressive, a normative, disciplinary supplement that allows law to expand, to test its limits. This chapter will continue the genealogy of the Western genre’s representations of justifiable gun violence I analyzed in Chapter 4, focusing on the revival of the Western in the early 1990s through a close reading of Clint Eastwood’s acclaimed 1992 film, Unforgiven. This pivotal film’s fantasy of extralegal violence is juxtaposed in these pages with the concept of ‘semiotic justice,’ an alternative modality for thinking and doing the work of justice that, most importantly for our reading here, notes the multiplicity of conceptions of justice that have operated and continue to operate in American society, culture, and politics. Unlike the idealized formalism of ‘the law’ that is rebuked in this chapter’s epigraph, a notion of justice as semiotic foregrounds competing claims of right, and indeed competing paradigms within which a claim of justice could be uttered, received, and adjudicated. Semiotic justice,

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in short, orients our focus more properly on seeing justice as a process. Considering the processes of justice in US culture can help us understand why Unforgiven was so resonant in the socioeconomic and juridical context of the early 1990s. Unforgiven, I argue, is a particularly fruitful film for such an analysis not only because its structure of feeling is so deeply invested in extralegal vengeance as a deeply satisfyingly climactic moment, or even because Unforgiven registers changing conceptions of due process before the law by graphically presenting the savage beating of a prostitute and the brutal whipping of an African American man. Most importantly, Unforgiven also explores shifting conceptions of justice through a nineteenth-century allegory of injustice—the heart of which is the treatment of a person as property. Before we examine ‘semiotic justice’ or Eastwood’s award-winning film more closely, let us first explore the effects that conceptions of property have had on American self-defense doctrine. Despite radical changes in property relations since the eighteenth century, the continuing mythical impact of private property endures not only because of its constitutive economic importance in a capitalist system but also for its rhetorical significance. As Jennifer Nedelsky has pointed out, ‘property has served as a powerful symbol of rights as limits to government. This notion of “rights” functioning as “limits” to “government” involves a complex set of abstractions and metaphoric links that nevertheless is taken as common sense by most Americans.’5 This ‘commonsense’ presupposition of the importance of private property as a limit to interference, a bounded zone of liberty, is perhaps nowhere more evident than in the simple phrase ‘a man’s home is his castle.’6 As outlined in Chapter 2, this same phrase was also an important rhetorical device in the transformation of justifiable homicide wrought by American self-defense doctrine. The evolution of American self-defense doctrine has ensured that, should anyone’s ‘castle’ come under siege, that individual may justifiably kill any attacker. Over the course of the evolution of the American legal system, however, we must grant equal importance to a set of normative gender constraints that underlie the notion of a besieged castle as a man’s home. Quite simply, American self-defense doctrine set a patently discriminatory precedent. The nineteenth-century rhetoric of separate spheres imagined the home as a ‘woman’s place,’ and yet self-defense was long held to be a man’s prerogative, especially within a private home. Moreover, men were expected to provide protection for women, thus rendering the use of force by women anathema within these gendered



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spaces. As property and gender relations began to shift in the 1960s and 1970s, however, the exercise of self-defense on the part of women emerged as a legal issue. Although American self-defense doctrine has broadened our conception of justifiable homicide seemingly beyond the relevance of gender or sex, the masculine bias that is manifest in American jurisprudence fits comfortably with the castle doctrine. The idea that a home was a place of special immunity that when forcibly threatened is tantamount to a castle under siege could not countenance a siege that originates within the home. What if someone who attacked you inside your house also lived there? Furthermore, what if the imminent threat posed by such an assailant was less a direct, immediate attack than a long history of abuse wherein the mere presence of the would-be assailant palpably threatens grave bodily harm or even death? Many abused women who kill their partners claim self-defense. More than sixty years after Holmes’s memorable 1921 opinion, the next stage in the progressive evolution of American self-defense doctrine would turn on just such cases. The 1984 case, Moran v. Ohio, illustrates a shift in American self-­ defense doctrine that began in the late 1970s.7 In this case, a woman was repeatedly abused and threatened by her husband, a violent man known to possess many firearms and prone to paranoia. He demanded money that he thought she was keeping from him. She had no way of raising the money and believed his threat to ‘blow her damn brains out’ should she fail to produce the money by the time he awoke from a nap.8 She took his gun and shot and killed him while he was sleeping. She was subsequently convicted of murder and appealed her conviction on the grounds that the jury instructions, which in part turned on whether she could have retreated, placed an undue burden of proof on her as the defendant and therefore denied her due process under the Fourteenth Amendment. Although the US Supreme Court denied certiorari, the dissent authored by Justice Brennan and joined by Justice Marshal raises the issue of whether or not a woman repeatedly abused should be required to retreat within her own home. Could a ‘battered woman,’ suffering from psychological distress and ‘economic and emotional dependency which makes it practically impossible for her to leave’ a relationship be required to retreat from an attacker in her home?9 Further complicating the question, the castle doctrine exception presupposes that an attacker in the home is an intruder from outside; yet in cases like this one the attacker is not an intruder but rather a cohabitant. These substantive

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considerations extend the ideas of self-defense and the home’s special immunity from threat beyond their traditional boundaries. Finally, could a man who was sleeping at the time of the confrontation be deemed an immediate threat? Through the 1980s and 1990s, many cases similar to Moran v. Ohio were appealed at the state or district level. Prompted in part by feminist legal scholarship, by the late 1990s several courts had begun to readjust the castle doctrine exception and self-defense generally to account for the practical inability of victims of domestic violence to leave relationships. In fact, in many instances this shift toward greater protection for victims of domestic violence turns on this very constraint. As Jeannie Suk explains, ‘If the traditional idea of the true man and the castle doctrine relied fundamentally on the autonomy of a person to stand on his rights, and even to make law for himself in his home, the rationale of permitting a battered woman to kill without retreating was that she lacked autonomy.’10 While the nineteenth-century shift in American self-defense doctrine turned on the right of (male) individuals to repel an attack provided they were otherwise within their rights, especially within the home, these late twentieth-century cases centered instead on an explicitly gendered consideration of the principle of retreat.11 The 1997 New Jersey case, State of New Jersey v. Gartland, is instructive in this regard.12 Ellen Gartland had long been abused physically and emotionally by her husband, John. In 1993, during a heated argument, Ellen retreated from her husband into her bedroom. Although she had often found solace from John in this room, this time John followed her there, threatened her with physical violence, and continued moving aggressively toward her. She took a shotgun from her closet and told him to stop. He then lunged toward her and threatened to kill her; she shot him and he died from the gunshot wound. At that time, New Jersey not only obligated retreat from violent confrontation but was also one of a minority of states that required retreat from cohabitants within the home. In such jurisdictions, the castle doctrine exception was rendered almost meaningless. Ellen Gartland was convicted of reckless manslaughter and sentenced to five years in prison. Both the trial jury and appellate courts rejected her claim of self-defense. Although she died while appealing her case to the state Supreme Court, the New Jersey Supreme Court heard her case, reversed the conviction, and issued an opinion that clearly evinces a shift in the interpretation of retreat within the home.



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The opinion in State of New Jersey v. Gartland demonstrates that the gendered bias implicit in American self-defense doctrine has long disadvantaged victims of domestic violence who kill their abusers. This doctrine holds that the threat from an assailant be immediate and such that a reasonable person would deem it life-threatening. More importantly here, even though many states had abandoned a general retreat requirement, retreat was often still required within the home when the attacker also lived there. The court points out that New Jersey’s requirement to retreat within the home when an assailant is a cohabitant places special burdens on Ellen Gartland’s claim of self-defense: ‘an abstract charge on the duty to retreat could only have been confusing in the circumstances of this case. Exactly where could she retreat? As we understand the record, there was no other way out of the bedroom other than the doorway where her assailant stood.’13 The opinion goes on to decry popular myths that women in abusive relationships are masochistically drawn to continue in such relationships, that they are free to leave at any time. The court notes that this misconception often results in predisposing a jury to blur the lines between retreating from deadly confrontations and leaving an abusive relationship. Finally, the opinion calls out the importance of prior abuse: At a minimum, the jury in Ellen Gartland’s case should have been asked to consider whether, if it found such to be the case, a reasonable woman who had been the victim of years of domestic violence would have reasonably perceived on this occasion that the use of deadly force was necessary to protect herself from serious bodily injury.14

In reversing her conviction, the New Jersey Supreme court cited systemic gendered biases in this important domain of the American legal system that bears directly on hierarchies of violence and abuse. The masculine bias evident in the putatively gender-neutral jurisprudence of American self-defense doctrine—inherent in the language of the ‘true man’ doctrine of Erwin v. State—was beginning to be explored in a changed political and social climate that would no longer remain blind to systemic forms of discrimination within the American legal system. The changing dynamics of the Western’s evolving conception of justifiable gun violence have always been historically contingent and interrelated with variations in the American legal system. The broadening of justifiable self-defense is similarly concomitant with the shift toward stronger and more extensive due process and equal protection guarantees, beginning in the 1950s with the Warren Court. To

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understand how shifts within the discursive realm of American jurisprudence would resonate throughout the Western genre, we must return to the concept of justice. Justice is a tricky concept precisely because its definition is always in flux. Charles Abel and Arthur Sementelli, in their insightful analysis Justice and Public Administration (2007), attempt to offer a more nuanced modality for thinking and working with concepts of justice.15 Adopting a poststructuralist perspective, they look to the troubled history of justice as a theoretical concept in proposing a more contextually bound praxis of how to ‘do’ justice in public administration by offering a new conception, a new definition, of ‘justice’: Thus we must come to realize that there is no substantive ontological content to any criteria of justice that we might discover through reason or revelation alone. Such criteria are given content only through agreement, largely in practice, among ourselves as to how we shall employ the criteria as we practice. It is only in the absence of such agreement that any particular criterion of justice becomes unacceptable.16

Their analysis of major philosophical traditions related to justice demonstrates that despite the ‘original position’ of Rawlsian neutrality, or Kant’s ‘categorical imperative,’ justice among competing groups of interest will always remain contested.17 Joining Abel and Sementelli, this chapter will read Unforgiven to illustrate one of the moments of resonance between the entwined evolution of American self-defense doctrine and the Western genre’s representation of gunslinging justice. Abel and Sementelli’s term, ‘semiotic justice,’ a conception of justice as contextually bound, helps structure my reading of the film: This [concept of semiotic justice] enables us to see justice not as a static concept derivative of the way things should be according to the dictates of nature, God, or reason, but as a dynamic, conflicted, and changing phenomenon that is a function of ever-changing relationships in a society.18

In the American context, contradictory public conceptions of justice often juxtapose two seemingly antithetical positions, claiming public sovereignty with a right to punish alongside a stress on legal neutrality. The American stress on legal neutrality is most fully realized in what Abel and Sementelli call ‘procedural justice’: Procedural justice was suggested to be a function of the extent to which a number of procedural rules are satisfied or violated. Specifically, procedural rules suggested that decisions should be made consistently without personal



Property, process, and justice in Unforgiven 179 biases, with as much accurate information as possible, with interests of affected individuals represented in a way that is compatible with their ethical values, and with an outcome that can be modified.19

Before examining this concept in full, however, we need to explore the closely analogous notion of revenge and then examine its operation within the popular American genre of Western films. We have considered how revenge operates in Westerns in some detail in this book’s opening chapters, but a quick summation may be useful here. Where there exists a legal system for remedying a wrong, revenge is seen as abhorrent chiefly because it is direct and personal, traits a mediated and disinterested legal system seeks to separate from punishment. This sense of the personal and immediate nature of revenge as threatening to a legal order is broadly shared. As Susan Jacoby notes in her wide-ranging study of revenge themes in literature and culture, Wild Justice: ‘one measure of a civilization’s complexity is the distance between aggrieved individuals and the administration of revenge.’20 This distance is precisely the mediation and procedural complexity enshrined in modern, European-style legal systems that seek to remove punishment from the aggrieved party in the hope of thereby establishing a more objective and proportional system of redressing injuries. The distance between revenge and a legal remedy has also been a particularly fraught notion in American popular culture. Terry K. Aladjem has suggested in The Culture of Vengeance and the Fate of American Justice that ‘when Americans say they want justice, they want something angry and punitive.’21 Aladjem’s ‘angry’ and ‘punitive’ agent of ‘justice’ finds embodiment yet again in the image of Clint Eastwood, this time as William Munny in Unforgiven—the punitive avenger whose anger is matched only by his prowess with a gun. What makes this gunslinger’s ‘justice’ so satisfactory is precisely that it is not only swift, precise, and conclusive, but also personal. Perhaps one of the chief values implicit in the deliberative, unbiased, and rational portrait of the American legal system’s removal of the administration of punishment from individuals is the avoidance of violence as a means of ‘resolving’ a conflict. Indeed, as analyses of revenge have shown, this approach is not unique to the American legal system, but, instead, has formed the core of the putative moral superiority of procedural justice over vengeance in numerous countries and cultures since the beginning of the Modern era. I do not wish to dispute this assumption per se, and want to be very clear that I am not

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advocating for a revenge culture to replace our current systems of justice and administration. Rather, I want to engage in detail with the generic themes and tropes of revenge and justice, because noting specifically who ‘deserves’ what in Westerns can help illustrate the genre’s evolving notions of gunslinging justice. I have been reading the cultural work of the Western genre as an emotional or rhetorical thinking-through, an anxious reification, of conflicts and inconsistencies in American legal paradigms and conceptions of justice through a fantasy of vigilante violence. These imaginative renderings of extralegal gun violence in the cinematic Western have offered audiences the pleasures of seeing and feeling ‘justice’ done in a remote historical setting, a frontier setting whose inhabitants often find themselves balancing on the edge of the law. The genre typically represents the formal structures of mediated legal recourse as inefficient or unavailable—the key characters and citizenry seem ever at risk without the formal protection of ‘the law’—thus relying persistently on an avenging hero whose sensational gun violence will be called upon to save the day. Through these imaginative and powerfully resonant ‘solutions’ to various problems of justice, the Western genre, I have been arguing, works as a normative, disciplinary supplement to more formal conceptions and procedures. As supplement, the Western genre also, it must be acknowledged, has been variously resonant, dissonant, and dormant in relation to other discursive regimes. At pivotal moments in the genre’s history, then, we can see the myriad ways in which the Western imagines gun violence to be justifiable, in moments of ‘semiotic justice,’ as characters grapple with changing and competing claims of right. As Abel and Sementelli suggest, ‘Contemporary society adorns a number of actions with meanings, symbols, and strategies all assumed to be part of justice.’22 They go on to note that the meaning of justice, as played out amidst competing conceptions of the same concept, is established through symbolic, performative practices: The meaning of justice, the values it puts at stake, and the beliefs upon which they are grounded are out there, but while it is true they cannot be located anywhere other than in the discourses themselves, it is not true that justice may mean just anything at all. Signifiers have meaning; they are not vacant masks waiting to be worn by just any interest. They have meaning as given by the dynamic context of social life from within which they arise and within which they have their application. Consequently, the term justice, while not signifying anything permanent, nevertheless derives its meaning



Property, process, and justice in Unforgiven 181 from our shared form of life, and as that changes so does the nature, the meaning, and the essence of justice and what we must do to secure it. The meaning or nature of justice is in this sense indeterminate; and while its meaning is neither a matter of strict logic nor practical necessity, it is not arbitrary either. It is socially and humanly coherent. It is not essentially any particular thing, but it cannot be just anything at all. The meaning of justice is coherent exactly to the extent that our form of life and its transformations are coherent.23

The Western genre has been an especially fecund symbol of justice in American society, constituting and continuing an enduring symbolism reflecting conceptions of justice that have resonated within American popular culture for more than a century. Like other symbolic spaces, or Wittgensteinian ‘language games’ (1953), the Western genre is a space within American popular culture in which conceptions of justice play out with a regularity that institutionalizes certain enduring moral intuitions.24 The staying power of such intuitions suggests that these issues are still far from settled, despite what Simon Petch and Roslyn Jolly have termed the Western’s ‘long tradition of constitutional commentary.’25 As Jim Kitses has argued, ‘It is only because the Western has been everywhere before us for so long that it “works.” For over the years a highly sophisticated sub-language of the cinema has been created that is intuitively understood by the audience, a firm basis for art.’26 Despite its longevity, surely due to the genre’s variable ability to refract contemporaneous concerns about justice, the Western has not always retained its enormous popularity. The revision or rejection of the Western’s model of gunslinging justice that began with the genre’s fall from popular favor in the early 1960s was accompanied by another important legal paradigm shift, namely the broadening of due process protections and the fuller incorporation of rights under the Fourteenth and Fifth amendments. These altered dynamics of constitutional interpretation further extended protections to women and minorities and sought greater procedural limitations in criminal cases to protect the rights of the accused. Although the Fourteenth Amendment provided for due process protection at the state level to aid freed slaves, the Court left equal protection largely unenforced for nearly a century. The 1954 desegregation case, Brown v. Board of Education, marked a watershed moment for enforcing the constitutional guarantees of due process of law and equal protection within the American legal system.27 The new racial and gender dynamics of popular culture in the 1960s and 1970s clearly engaged with this dynamic

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shift in the American legal system. An important marker of this shift in popular tastes and the legal system was the increasing prominence of African American actors and the rise of the Blaxploitation genre. The 1966 case, Miranda v. Arizona, expanded the procedural limitations and restrictions in criminal prosecutions beyond a presumption of innocence and the right to a trial by jury to include access to legal representation and a provision against incriminating speech.28 Since that case the act of ‘lawyering up’ by alleged criminals has become commonplace in police procedurals and murder mysteries. As the nation began forthrightly to address its racial, gender, and imperial biases during the 1960s and 1970s, the Western also became less coherent as a context for justifying personal gun violence. The deeply cynical diegetic worlds of Peckinpah’s poetic ballets of death in Pat Garrett and Billy the Kid (1973) and The Wild Bunch (1969) so blur the genre’s traditional distinctions between hero and villain that the status, much less social function, of avenging hero becomes unclear. Similarly, revisionist histories of race relations such as Arthur Penn’s Little Big Man (1970) or explorations of gender dynamics such as Altman’s McCabe and Mrs. Miller (1971) exude a pervasive pessimism that leaves little room for the exhilarating triumphs of a heroic Anglo avenger. Moreover, parodic films such as Blazing Saddles (1974), Cat Ballou (1965), and Support Your Local Gunfighter (1971) inherently relied on the very conventions they derided. Finally, the numerous swan-songs to the genre and its aging stars, perhaps best realized in such above-mentioned films as John Ford’s The Man Who Shot Liberty Valance (1962) and Don Siegel’s The Shootist, (1976), often work to explicitly depose the heroic cowboy figure as an unfit mythic ideal. It is no surprise then that, during the 1970s, American cinematic exercises in revenge moved out of the frontier and into the cities, as in Don Siegel’s Dirty Harry (1971) and the Charles Bronson vehicle, Death Wish (1974), films that spawned multiple sequels to build a body of work that explores the expanding protections for the accused and the limitations on prosecutorial and police powers that followed in the wake of the Miranda decision. Revenge films of the 1970s also explored the nightmarish terrain of the slasher genre in movies such as The Texas Chainsaw Massacre (1974) and I Spit on Your Grave (1978). And as if to put the last nail in the coffin of the Western, stars of that genre made the transition to urban police procedurals, including John Wayne in McQ (1974) and Brannigan (1975) as well as Clint Eastwood in Coogan’s Bluff (1968) and Dirty Harry (1971).



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Unforgiven represents an important moment in the Western’s history, marking a highpoint of the genre’s late twentieth-century revival, its tale of vengeance representing the first serious Western engagement with justifiable violence since the genre’s precipitous decline. Commenting on the film’s appearance in the early 1990s, Edward Buscombe has noted the import of Unforgiven: ‘By 1992 the Western genre itself was a museum piece, something that could only be resurrected by a certain form of arch-knowingness.’29 It is perhaps this very ‘knowingness’ regarding the genre’s past that makes Unforgiven so interesting. The film’s script was written by David Webb Peoples in 1975, when it was titled The Cut-Whore Killings. After Francis Ford Coppola, who wanted to title it The William Munny Killings, chose to let the project go, Eastwood optioned the script and sat on it for several years before finally giving it the title it bore on release.30 Set in Wyoming in 1880, Unforgiven stars Eastwood as the aging William Munny, ‘a man of notoriously vicious and intemperate disposition,’ a killer of women and children, who had been reformed of his ‘wickedness’ by his now dead wife. A single father struggling to keep up a hardscrabble pig farm, Munny and his partner Ned Logan (Morgan Freeman) are tempted by an aspiring gunfighter who calls himself ‘the Schofield Kid’ (Jaimz Woolvett) into joining a mercenary plot to avenge the cutting of a prostitute’s face by an angry, drunken client. The trio’s killing of the two cowboys who disfigured the prostitute and their collection of the thousand dollar bounty is a grisly, messy affair that results in Ned’s death at the hands Little Bill (Gene Hackman), the sheriff of the town of Big Whiskey. The film’s revenge plot is complicated by Ned’s death even as its ‘revisionist’ equivocations on violence and death are complicated by the narrative demand for Little Bill’s death at Munny’s hands. The story of this Western, like that of all revenge plots, is consumed with righting injustices. The injustice that abruptly opens the film’s action shows a cowboy, hesitantly and unwillingly aided by another cowboy, savagely cutting a prostitute’s face for having giggled at his penis. This, then, is the initial injury, the original injustice, which will propel the plot of Unforgiven. The cutting of a woman, albeit a prostitute, constitutes a grave harm, a harm whose heinousness is magnified by hyperbole each time it is related during the film (see Figure 22). What makes Unforgiven’s injustice so interesting is the way in which this initial injustice becomes compounded by the law’s failed attempt at redress. Sheriff Little Bill is called on to dole out punishment as the agent of the law.31

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22  Anna Levine as Delilah and Francis Fisher as Strawberry Alice in Unforgiven, 1992

After first considering whipping the two cowboys, Little Bill is prompted by Skinny (Anthony James), the owner of the Saloon—and as his bill of sale attests, also the owner of the wounded prostitute Delilah (Anna Levine)—to consider the offense against Skinny to be a case of property damage caused by the cowboys. Little Bill sides with Skinny and, instead of punishing the cowboys corporally, renders instead a fine, in the form of horses, to be paid to Skinny. Significantly, the beaten and disfigured prostitute as an individual herself entitled to a legal claim figures nowhere in Little Bill’s account of the nature of the wrong or of the ‘appropriate’ remedy. As Simon Petch and Rosalyn Jolly have noted, ‘Little Bill’s remedy fails to grant the injured women legal status as the victim of a crime; it reduces the whole legal issue to a matter of contracts and compensation between male property-holders, altogether bypassing the woman and the violence done to her body.’32 The failure to punish the cowboys sufficiently causes the other prostitutes to call upon another regime of justice besides that offered by ‘the law’ in Big Whiskey. As the most outspoken of the prostitutes, Strawberry Alice (Francis Fisher) laments, ‘you’re not even gonna whip ’em, Little Bill, for what they done?’ As if the cowboys’ violence against Delilah is not enough to prompt a full-blown Western revenge plot, this injury is compounded by the injustice of a legal regime that does not count prostitutes as persons deserving due consideration in the calculus of justice in the town of Big Whiskey. Abel and Sementelli’s summation of ‘procedural justice’ resonates here. They note that conceptions of procedural justice can ‘be summarized as being composed of three components: (a) formal characteristics



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of procedures (b) explanation of procedures and decision making, and (c) interpersonal treatment.’33 Delilah receives none of these. She fails to receive them, quite simply, because in the contractual, capitalist-oriented conception of ‘law’ as depicted in the town of Big Whiskey, Delilah does not count as a person.34 She counts, if at all, as property, or in Skinny’s conception, ‘damaged property.’ Abel and Sementelli come very close to describing such a conflict over ‘justice’ when they consider the issue of injustice, observing that ‘injustice occurs when some established or agreed upon criterion is ignored or replaced, possibly at the behest of some other community of interests. This replacement could realistically involve completely different sets of criteria, as well as different mores, different assumptions about what is good, right, and proper, and even what might be understood as just.’35 In effect, Unforgiven narrates a powerful tale of retributive, decidedly personal, justice being invoked as a substitute for the failure of a conception of procedural justice that disregards a core constituency. Quite simply, because Little Bill’s ‘justice’ has failed in Big Whiskey, Strawberry Alice and the other the prostitutes call for revenge. In short, Little Bill treats the cutting as a civil offense, not a criminal one. The wounded Delilah seems ready to forgive the offending cowboys, but her colleagues are outraged. Meanwhile Strawberry Alice complains about their treatment as property, property to be bought, consumed, and even exchanged as recompense for a civil injury to a man’s property interest by exclaiming, ‘Just because we let them smelly fools ride us like horses don’t mean we gotta let ’em brand us like horses. Maybe we ain’t nothing but whores but we, by god, we ain’t horses!’ The impropriety of Little Bill’s legal consideration of the initial offense, his collaboration with Skinny to treat the issue as a civil instead of a criminal offense, is the injustice that prompts the prostitutes’ advertising of a bounty for the cowboys’ deaths. Little Bill initially escapes the prostitutes’ wrath, and perhaps garners sympathy from the audience, by first offering to whip the offending cowboys and then claiming that his civil redress is designed to prevent further bloodshed. His subsequent actions as a heavy-handed embodiment of the law, however, propel both the plot and the audience’s sense of righteous indignation to ensure that he must be included among those who ‘had it coming for what they done to her.’ Little Bill is a unique lawman in the Western genre. Unlike the ineffective, reluctant, or corrupt lawman of the Classical Western, Little Bill is neither a weakling, conveniently unavailable, nor entirely corrupt.

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Attempting to prevent the prostitutes’ bounty from attracting the attention of ‘assassins,’ Little Bill enacts a firearms ordinance in the town of Big Whiskey, ordering everyone to turn in their weapons, a tactic regularly used in the nineteenth century to regulate rampant gun violence. This ordinance also provides Little Bill with an excuse for public savagery, as he mercilessly beats two men whom he suspects, correctly it turns out, to be violating the ordinance. The first beating is received by the assassin ‘English Bob’ (Richard Harris), who has come to Big Whiskey to murder the cowboys and collect the reward. Although the film portrays Little Bill as correct in his initial accusations against English Bob, Little Bill’s ruthless beating of the would-be bounty collector in the public street—on Independence Day no less—turns the town, and in turn the audience, further away from Little Bill. Little Bill’s sadism is similarly distasteful when applied to Munny, whom he also beats for violating the firearm ordinance and because he correctly suspects that Munny is an aspiring bounty assassin. Again, Little Bill is a complicated, if not exactly temperate, representation of the law; his initial suspicions, if not his subsequent savagery, are presented by the film as entirely justified. Each of the men he has beaten thus far has broken the firearm ordinance and is in town to assassinate the cowboys. Little Bill violates this narrow margin of justification, however, when he beats Munny’s partner, Ned, to death. Dismayed at the horrendous death of the first cowboy and disgraced by his own inability to act, Ned attempts to abandon the mercenary adventure and return home. This is a particularly affecting moment in the film, for this cowboy, who dies slowly and painfully of a gunshot wound to the gut delivered by Munny’s rifle, was not the one who cut Delilah. He did hold her down, but he is portrayed diegetically as horrified by his companion’s brutality and remorseful for his complicity in the act. The more ostensibly ‘guilty’ cowboy, the one who actually disfigured Delilah, is dispatched in a similarly unglamorous way, though, shot unsuspectingly at close range in an outhouse by the Schofield Kid. The Kid, despite having boasted of many previous killings, reveals that he has, in fact, never shot a man and is profoundly shaken by this event. The horrific nature of the deaths of these cowboys undermines the righteousness of the film’s revenge motive and calls into question the moral virtue of a gunslinging resolution to the initial conflict that propels the plot. Word of the cowboys’ deaths spreads quickly, and Ned is apprehended and subsequently interrogated by Little Bill. What follows is



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a masterfully filmed scene of abuse, highlighting yet again Little Bill’s sadism and his penchant for whipping, which results in Ned’s death. Although both Munny and the Scofield Kid each murdered one of the two cowboys, Ned hasn’t killed anyone. As Munny laments to the Kid, ‘they killed Ned for what we done.’ As such, Ned, like Delilah, represents what might be termed moral innocence here. Little Bill’s killing of Ned is thus portrayed as a supreme injustice, propelling the revenge plot to conform to the audience’s expectations of how a Clint Eastwood Western should end. Ned’s death fills the audience with righteous indignation at Little Bill’s shocking demonstration of police brutality. As Jane Tompkins has put it in her discussion of another Western’s construction of this need, this generic demand for the villain’s dispatch at the hands of the hero: ‘retaliatory violence becomes not simply justifiable but imperative; now, we are made to feel, not to transgress the interdict against violence would be the transgression.’36 Unforgiven’s manifold examination of justice thus contains another instance of injustice, another injustice in which a particular set of practices for the administration of punishment exceeds a public expectation of what is right and wrong. The practices in this case—Little Bill’s heavy-handed interrogation technique—quite plainly do not conform to public expectations of how ‘justice’ ought to be served in either the film’s nineteenth-century diegesis or the social context of a 1990s cinema audience. Once again, the violence of the gunslinging avenger seems ever propelled by a shared sense of what is just. Ned’s death thus works to generate righteous indignation over Little Bill’s shocking demonstration of police brutality (see Figure 23). In short, Munny must now kill Little Bill and Skinny—who desecrates Ned’s corpse as a warning to other would-be assassins—‘for what you done to Ned.’ The whipping of Ned, played by an African American actor, also makes race an issue in the film. Unforgiven thus stands as an innovative Western by addressing both an injustice done to women (denying them the equal protection under the law) and a racial injustice within the law. The original Unforgiven script makes no mention of Ned’s race, and the film itself never does so explicitly. There’s a fantasy of color-blindness that might claim that Morgan Freeman’s presence in the film need not signify anything beyond his performance of the given role. However, it means something in American culture to have a black man whipped to death by a white man. It certainly meant something in the diegetic space of the ­nineteenth-century town of Big Whiskey. Given the injustice occurring

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23  Morgan Freeman and Gene Hackman as Ned Logan and Little Bill Daggett in Unforgiven, 1992

from treating people as property that propels the film’s plot, and given also that the diegetic setting exists less than a generation after Emancipation, the presence of a black man in 1880 would certainly have resonated, as evidenced by the horrified citizens captured in several reaction shots as they listen to the sound of Little Bill’s brutality. Morgan Freeman’s racialized presence in the film could be read as a problematic anachronism that strains credibility. Ned’s race is nowhere remarked upon in the film and it is indeed hard to imagine that Wyoming in the 1880s would not be inhabited by at least one racist who would explicitly and vocally object to Ned’s race. On my reading, though, this particular inconsistency tells us more about the film’s ability to endorse anti-racist sentiments contemporaneous with the film’s release regardless of their correspondence to the fictional setting. Unforgiven thereby adds a new twist to the Western’s traditional discourse on racial and ethnic minorities. Finally, such a depiction of police brutality, even if one tried very hard to resist reading it as racialized, certainly meant something in 1992. I am referring, of course, to the infamous public spectacle of the beating of the African American Rodney King by four Los Angeles police officers in 1991, the media circus that was their trial, and the public outrage and rioting that followed the 1992 verdict that found three of the officers innocent. I am not claiming that Unforgiven should be read as an intentional allegory for the Rodney King incident. Neither should we claim the film as an allegorical treatment of the contemporaneous OJ Simpson case, although in these cases the defendants were found innocent of criminal charges but guilty in subsequent civil trials,



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not unlike Little Bill’s adjudication of the crime against Delilah. What matters about these cases is not how well they line up with contemporaneous cinematic representations of injustice, or vice versa, but that they were part of a wider trend in the 1990s of criminal and civil cases whose adjudication resulted in national uproars over injustice; recall, for instance, the McDonald’s coffee lawsuit (1994), or the trials of John and Lorena Bobbitt (1994) and the Menendez brothers (1993, 1996). That national anxiety over the perceived injustice of the legal system would be marked in its popular culture is not surprising. The revival of the Western genre in the early 1990s, then, is associated with national anxiety regarding an apparent discord between justice and the legal system. Neither, I argue, should it be a surprise to see such anxiety worked through in American culture in the Western genre; as I have tried to demonstrate throughout this book, the Western has long been a lens through which American film has filtered questions about the law and violence, power and authority. The return of its symbolic frontier space, then, must be concomitant with public concerns about these same issues. Abel and Sementelli’s concept of semiotic justice stresses what they term the ‘hortatory’ nature of justice: ‘Justice, as it is broadly conceived in the management and organizational literature, is not in fact operating as the sort of political idea they are most comfortable with. Rather, it is truly operating, for the most part, as a mechanism to foster order.’37 The urging, exhortatory nature of justice in their conception comes rather close to the notion of the performativity of language within literary theory and gender studies. The contextual specificities of justice within the conception of semiotic justice come close to revealing the necessarily operational, performative nature of justice. The injustices that propel Unforgiven’s revenge plot symbolize a particular contemporary legal concern, namely the provision of equal protection and equal recognition before the law, the extension of due process, and the further broadening of American self-defense doctrine. Seminal cases since Brown v. Board of Education mark a significant paradigm shift in the interpretation of the American democratic notion of equality before the law, extending due process protection to racial, ethnic, and sexual minorities, and expanding national safeguards for the protection of women including broadening allowances for their own use of justifiable force. The social revolutions that both informed and followed this shift in the law—the interweaving of the warp and the woof—represent the changed public sense of right and wrong that fueled the rejection and revision of the Western during the 1960s and

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1970s. Unforgiven treats sexual and racial persecution explicitly, thereby expanding the traditional Western’s discourse on race and gender. In so doing, the film resonated in the early 1990s with changes in both the popular understanding of due process and the set of persons to whom due process and equal protection are to be applied in American jurisprudence. Thus far, my reading of Unforgiven seems to cohere closely with the standard notion of extralegal violence as supplementary. By coding Little Bill as a particularly sadistic agent of police brutality, and by stressing the injustice done within the film to women and then to a representative of a racial minority, Unforgiven works consciously to conform to a contemporary audience’s sense of right and wrong. That Little Bill has it coming is beyond doubt. Contrasting this film’s ending with the iconic High Noon (1952), Miller notes that, in Unforgiven, ‘We want the outlaw to shoot the sheriff.’38 Something drastic has shifted in public sympathies and artistic representations pertaining to law, power, and justifiable violence. The shift can be explained in large part by the shifting social and political status of women and minorities, as outlined above. And yet, the final exchange between Little Bill and Munny suggests quite literally that deserving punishment is beyond the point. I therefore close this examination of Unforgiven by briefly addressing the classification of Unforgiven as a ‘revisionist’ Western. Despite being widely acclaimed as a revisionist text, Unforgiven argues finally, like many an iconic Western before it, for society’s need of an Anglo American male to play the avenging hero. It is, after all, the vicious killer working outside the law who rights the injustices within the film’s revenge plot. To refute a causal analysis once again, I would point out explicitly that Unforgiven does not work as either an intentional allegory of contemporaneous self-defense cases or as an attempt to demonstrate a more robust conception of justice that would be better attuned to the substantive demands of lives and circumstance in recognition of harms and its administration of remedies. More significantly, although the American legal system had very recently explored further expanding American self-defense doctrine to justify a woman’s right to self-defense within the home, in 1992 Unforgiven could not remedy the initial injury to Delilah without recourse to an Anglo gunslinger. It is telling, in other words, that the film cannot imagine Delilah defending herself with a gun, even within the context of such a clear cycle of abuse as that of nineteenth-century prostitution. Unforgiven, therefore, has much in common with the classical Western.



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Completely unrepentant for his actions, the wounded Little Bill mutters to the avenging Munny standing over him, ‘I don’t deserve to die like this.’ The camera cuts to an extreme low-angle shot approximating the prostrate sheriff’s perspective so that we see the towering, menacing figure of Clint Eastwood with his rifle pointed directly at us as he utters, ‘Deserve’s got nothing to do with it’—immediately before he shoots Bill point-blank in the face. Surely, though, during a period of national turmoil fueled by questions about who deserves punishment, which crimes deserve which remedies, and who deserves the protection of the law, ‘deserve’ must have had something to do with the satisfying revenge plot of Unforgiven. I would argue, however, that there is more going on here than whether or not Little Bill ‘deserves’ to die. For at issue in much of the film and in much of its critical acclaim is precisely the audience’s expectations for the ending of a Clint Eastwood movie. Nurtured by three decades of starring roles featuring Eastwood as an avenging gunslinger, this intertextual expectation demands that by the end of an Eastwood film we will be treated to a spectacle of gun violence. The righteousness of this violence is beyond doubt. Neither is there any doubt that, once unleashed, Eastwood as Munny will enact a particular style of gunslinging justice, a style, I argue, that is writ through with normative constraints: there is no doubt he will use a gun, there is no doubt that he will aim true and fire straight, and there is no doubt that he will be faster than his adversaries. In what many take to be the film’s revisionist ethos, several strategies are employed to undermine these expectations. For instance, Munny claims throughout that he’s always been ‘lucky when it comes to killing.’ ‘Lucky,’ here, should be read as crucially opposed to the restrained, objective, and most of all disciplined violence undertaken in the name of ‘the law.’ Additionally, the presence of the embellishing dime novelist, Beauchamp (Saul Rubinek), and his many exchanges with the self-aggrandizing Little Bill further call into doubt the authenticity of the Western gunslinger and the typecast Eastwood hero. Perhaps most importantly, though, Munny’s repentance and his turn from his earlier drunken ways consistently suggest that his previous killings were all committed during drunken rages. The role of alcohol in his apparently wild past is highlighted when Munny seizes a bottle and drinks urgently upon hearing of Ned’s death. That this ill-tempered drink foreshadows his coming rage is emphasized by widescreen shots capturing foreboding clouds and the low rumble of thunder. To ‘blame it on the booze,’ however, does little to undermine the

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emotional force of Munny’s rage; nor does it make his violence any less constrained within the Western’s normative conceptualization of masculine gun violence. Instead of a revenge narrative wherein a woman avenges an injury by herself—as in the earlier Western Hannie Caulder (1971), any number of the rape–revenge tales such as I Spit on Your Grave, the more contemporaneous Thelma and Louise (1991), or even the later “feminist” retelling of urban vigilantism in the Jodi Foster vehicle The Brave One (2007)—the story here requires Eastwood as Munny to serve as an avenger within the Western genre. His climactic violence, then, is certainly brutal, but it isn’t exactly wild. That he shoots an unarmed man—undercutting the genre’s cherished trope of justifying heroic violence as primarily defensive—is explained away by Skinny’s desecration of Ned’s body. Like so many gunslingers from the genre’s past, Munny’s climactic violence is directed, and decisive. The villains dispatched in an aesthetic flurry of bullets, Munny rides off. Although his hyperbolic threats to the cowed citizenry, along with his slow sulk through the pouring rain down the muck-filled streets of Big Whiskey, hardly serve as a triumphant and justified ride-into-the-sunset scene so dear to the genre’s heyday, the ostensible injustices that have propelled the film’s plot have largely been righted as Anglo American male gun violence has yet again ‘resolved’ several complex and seemingly irresolvable issues of ‘justice.’ After viewing a film like ­Unforgiven one is left wondering, however, how semiotic justice can bridge the gap between competing conceptions of justice when its operations exist in a space with competing definitions not merely of what counts as ‘justice’ but more centrally of who may administer it. In other words, it is hardly arguable that on most conceptions of justice one is to treat others fairly and, more specifically, one is not to accost, rob, harass, or molest other people. What a cultural text like Unforgiven illustrates is that the operation of justice is as much concerned with its application to particular groups and individuals as it is with procedural hurdles. Who counts within the application of justice has been, to put it mildly, more than a passing issue in American history and culture; given the recent political fights over enemy combatants and due process of criminal law, or undocumented workers and procedural justice within immigration law, the issue is not likely to pass into the sunset anytime soon. Is it any wonder then that despite its seemingly outdated Western trappings Unforgiven has continued to resonate so well with both popular and critical audiences?



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 1 Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, MA: Harvard University Press, 1991), p. 10.  2 Virginia Wright Wexman, Creating the Couple: Love, Marriage, and Hollywood Performance (Princeton, NJ: Princeton University Press, 1993), p. 76.  3 Ibid., p. 80.  4 Ibid., pp. 95–6.  5 Jennifer Nedelsky, ‘Law, boundaries, and the bounded self,’ Representations, 30, Special Issue: Law and the Order of Culture (Spring 1990), pp. 162–89; p. 162.  6 Ibid.  7 Moran v. Ohio, 469 U.S. 948 (1984). Although the incident attained national notoriety, I have chosen not to discuss here the contemporaneous case of Bernhard Goetz. Goetz, deemed the ‘subway vigilante’ for his shooting of four young men on a train in New York City in 1984, became a celebrity of sorts for standing his ground. While his actions and the outpouring of public support he received both in the media and at trial, where he was convicted of only a minor gun charge, is surely indicative of the pervasiveness of American self-defense doctrine, the Goetz case had little lasting impact on its evolution. Furthermore, his case has received a good deal of attention already and, to my mind, occludes the more important contemporary shift in jurisprudence that began to struggle with the systemic gender issues embedded in American self-defense. Furthermore, the Goetz case seems more relevant as an echo of urban vigilante films such as the Charles Bronson vehicle Death Wish (1974) or even a film like Dirty Harry (1971) than it is to contemporaneous Westerns. For more on Goetz, see George P. Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial (Chicago, IL: University of Chicago Press, 1988) and Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (New York: Oxford University Press, 1991), especially Chapter 4.  8 Moran v. Ohio, p. 949.  9 Ibid., p. 950. 10 Jeannie Suk, ‘The true woman: Scenes from the law of self-defense,’ Harvard Journal of Law and Gender, 31:2 (Summer 2008), pp. 237–76; p. 258. 11 The final stage in the progressive evolution of American self-defense doctrine is indebted in complicated ways to the previous shifts within this legal paradigm. According to Suk, since 2005 more than forty states have approved or proposed legislative provisions to broaden the right to engage in deadly confrontations in self-defense (see Suk, ‘The true woman,’ p. 37). Many of these are explicitly derived from the castle doctrine exception, and like Florida’s Protections of Persons Law, seek to broaden the ability of people to use deadly force to repel an attack both within and outside the

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home. For more on these laws and their potential to even further expand the realm of justifiable self-defense through the use of protection orders, see Suk, ‘The true woman.’ 12 State of New Jersey v. Gartland, 149 N.J. 456 (1997). 13 Ibid., p. 476. 14 Ibid., p. 476–7. 15 Charles Abel and Arthur Sementelli, Justice and Public Administration (Tuscaloosa: University of Alabama Press, 2007). 16 Ibid., p. 84. 17 John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 2005 (1971)); Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Mary Gregor (New York: Cambridge University Press, 2011 (1786)). 18 Abel, and Sementelli, Justice and Public Administration, p. 6. 19 Ibid., p. 57. 20 Susan Jacoby, Wild Justice: The Evolution of Revenge (New York: Harper & Row, 1983), p. 5. 21 Terry K. Aladjem, The Culture of Vengeance and the Fate of American Justice (New York: Cambridge University Press, 2008), p. 3. 22 Abel and Sementelli, Justice and Public Administration, pp. 66–7. 23 Ibid., pp. 83–4. 24 Ludwig Wittgenstein, Philosophical Investigations (New York: Pearson, 1973 (1953)). 25 Simon Petch and Roslyn Jolly, ‘Law and politics in Unforgiven,’ Arizona Quarterly, 59:1 (Spring 2004), pp. 125–45. 26 Jim Kitses, ‘Authorship and genre: Notes on the Western,’ in Jim Kitses and Gregg Rickman (eds), The Western Reader (New York: Proscenium, 1998 (1969)), pp. 57–68; p. 65. 27 Brown v. Board of Education, 347 U.S. 483–96 (1954). 28 Miranda v. Arizona, 384 U.S. 436 (1966). 29 Edward Buscombe, Unforgiven (London: British Film Institute, 2004), pp. 16–17. 30 A Western from 1960, The Unforgiven, bears a similar title. In that film, however, the attribution is clearly directed to an Anglo family that has raised a Kiowa Indian child as one of its own, an action that not only tears the family apart but cannot be forgiven by their neighbors. Unlike that far inferior film, which improbably stars Audrey Hepburn as the Kiowa child grown into an adult woman, the nature of forgiveness in Eastwood’s film is far more ambiguous. The exact applicability of the term to any of the characters remains open throughout: clearly the two cowboys who abuse the prostitute at the beginning, hunted and killed for their actions, are not forgiven. Skinny and Little Bill are also eventually killed by the end of the film, unforgivable for their ethically myopic handling of the initial injury to



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Delilah as much as for Skinny’s desecration of Ned’s corpse and Little Bill’s heavy-handed prosecution of Ned and Munny. The scrolling titles which open and close the film—which call into question why an upright Eastern woman would ever marry a merciless man like Munny from the perspective of this woman’s mother—also suggest that Munny himself, and even his widow, are also unforgiveable. Finally, his repeated remorse and disavowal of his earlier life as a murderous outlaw suggest that Munny cannot forgive himself. 31 I use the term ‘agent’ here somewhat loosely, for in the diegetic world of Big Whiskey, Little Bill is the law. He plays the role of judge and jury, and in spite of his heavy-handed but pragmatic approach, the town seems content to allow him to enact this law. Simon Petch and Roslyn Jolly’s essay, ‘Law and politics in Unforgiven,’ more fully explores the film’s representation of Little Bill as an embodiment of the law, arguing that the film posits Little Bill as a symbol of sovereign tyranny by placing special emphasis on his opposition to English Bob. 32 Petch and Jolly, ‘Law and politics in Unforgiven,’ p. 130. 33 Abel and Sementelli, Justice and Public Administration, p. 58. 34 As several commentators have noted, the mismatch here between the film’s diegetic setting and the historic Wyoming of the 1880s, one of the first states to grant women the right to vote, is worth pointing out. 35 Abel and Sementelli, Justice and Public Administration, pp. 97–8. 36 Quoted in Matthew Carter, The Myth of the Western: New Perspectives on Hollywood’s Frontier Narrative (Edinburgh, UK: Edinburgh University Press, 2015), p. 38. 37 Abel and Sementelli, Justice and Public Administration, p. 53–4. 38 William Ian Miller, ‘Clint Eastwood and equity: Popular culture’s theory of revenge,’ in Austin Sarat and Thomas R. Kearns (eds), Law in the Domains of Culture (Ann Arbor: University of Michigan Press, 1998), pp. 161–202; p. 198.

7

Old dogs and new tricks: race and justifiable homicide in neoliberalism’s Western imagination There is, of course, always something comforting in the familiarity of forms, narratives, and settings, no matter how revisionist they might appear. There is often the sense that in revising by inclusion (the black Western, women’s Western, or ethnic Western), one simply plots new groups back into the existing framework with the same primary values and ideologies, thereby maintaining an overall hegemony. Neil Campbell, Post-Westerns1

In this book I have argued that the Western genre’s representations of heroic vengeance must adapt along with the public’s sense of right and wrong, providing a rhetorically effective style of justice where that means righting a grave harm. I have tried to show, then, that the Western genre’s stylistic tropes have evolved in tandem with this country’s shifting notions of justice. I stress here the genre’s evolution, because I read the form’s history as marked by significant shifts in American juridical regimes and passions which cut to the heart of the complexities underlying the American ideal. As Robert Pippin has suggested in his reading of High Noon as a myth of failure—the tragedy of the inability of Hadleyville to rally together in the face of a grave threat—the passions raised by the Western ‘are not arguments in defense of anything; nor are they premises in some claim about the best way to live … they are raising questions about political psychology in a form that requires a great deal of interpretive and evaluative work to get at and think about.’2 I have not made any causal claims here, and I am less interested in issues of authorial intention—neither at the legislative or judicial level nor within the realm of auteurist strains identified in film studies—than I am



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in understanding how this popular genre resonates with contemporaneous political, juridical, and moral issues. I have chosen the terminology of resonance, and carefully avoided employing ‘reflection’ in tracing the relationships between discursive realms, focusing our attention on the work that culture does in the world. By insisting on cultural expressions as ‘working’ in the world, instead of as simply reflecting the conditions of a world artificially imagined to operate outside or apart from the production, distribution, and reception of cultural texts, I am attempting to highlight the genre’s role in diffuse, intersecting networks of power relations. Another guiding premise of my work has been that the style of justice enacted by the Western’s avenging heroes has depended on guns. In the preceding chapters I have argued that the iconography of gunplay in the genre has evolved along with paradigmatic changes in the American legal system’s administration of gun rights and justifiable homicide. By linking these two seemingly distinctive arenas, law and popular culture, I have been arguing throughout that normativity functions at the intersections of discursive regimes. The fullest normative portrait that has emerged from the analyses thus far has been that of the quintessential American Western hero—armed, Anglo, and male—a normative conception that continues to form the backbone of both US popular culture and the US legal system. Many critics of the Western have written, some hopefully, some mournfully, about the genre’s purported demise. Indeed, as several scholars have noted, one of the ironies of the Western genre’s history is the inverse relationship between its popularity as a commercially viable genre and its popularity as a subject for academic criticism.3 It almost seems as if we would all rather be talking about the Western, tracing its history and analyzing its impact, than watching a horse opera, either at the theaters or at home. It is understandable, then, that we may be forgiven for wondering about the genre’s continued hold on the popular imagination, as Andrew Patrick Nelson does in the introduction to his edited volume Contemporary Westerns, Film and Television Since 1990: Perhaps because there are now fewer Westerns, or because their appearances have been more diffuse and not concentrated into a distinct cycle, a clear picture of the relationship between the post-9/11 American zeitgeist and the Western genre—as opposed to individual works—has yet to emerge. Though the Western remains a story form that individual artists may draw upon to grapple with contemporary issues—we may question whether it

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retains the same privileged relationship with the American subconscious today that it enjoyed in earlier decades. When dozens of films are produced annually, there is certainly a case to be made that a genre ‘speaks’ to its audience. But can the same be said when only one or two films are released in a year? This question speaks to the challenge of explaining just what the Western means in the contemporary context.4

The challenge of explaining what the Western genre might ‘mean’ in our contemporary context can, I argue, be uniquely approached by examining the ways in which recently successful and popular Westerns on television and film continue to imagine gun violence as justifiable. For although the genre’s production numbers seem ever in decline, Western films and television shows continue to be written, produced and, it must be said, received with enthusiasm. In this final chapter, then, I employ readings of a television series, Justified (2010—), and Quentin Tarantino’s film, Django Unchained (2012,) to consider the genre’s continued salience, relevance, and resonance with, and within, other discursive regimes. As I have tried to show over the course of this book, what is unique about the history of violence in America is not only the symbolic richness of our representations, but also the interplay between the fantastic realms of cultural products and other discursive regimes—the ways in which the warp and woof of American gun violence and self-defense doctrine are woven together into a mythical fabric championing the rights of individuals to defend themselves with mortal violence. At the time of this writing in 2017, gun violence continues to be a serious domestic problem, punctuated by horrific tragedies, public uproar over cases and verdicts, and continued legislative and political wrangling. With the shooting of Trayvon Martin, the imprisonment of Marissa Alexander, the shooting of Mike Brown in Ferguson, Missouri in 2014 and the rioting and militaristic police response that followed, as well as a growing number of states passing more liberal ‘Stand Your Ground’ laws, the American self-defense doctrine, standing one’s ground, and the Second Amendment are all very much troubled in this moment, so it should surprise us little to find their expression in the Western genre. I shall focus first on the contemporary television series Justified, which situates a Western gunslinging hero in the person of Raylon Givens (Timothy Olyphant) in the attenuated, incremental machinations of the post-Miranda era. Although Justified is set in contemporary America—thus making it a ‘post-’Western by many schematics—I read the show as continuing the genre’s work of mediating gun violence by



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once again portraying conflict resolution via the gun as an ennobled defense. Furthermore, despite the sly witticisms frequently employed to cast Givens as a man out of time or place in contemporary law enforcement, Justified continues to rely on an Anglo American man to deliver its notion of gunslinging justice. The show, then, is resonant with—in conversation with—contemporary legal issues associated with defensive gun violence in the wake of the 2008 Heller ruling. Like Alan Ladd’s titular performance in Shane, Timothy Oliphant’s Raylon Givens sees his gun as a tool, and seems to need no mythic ethos to warrant what he does with it. During a confrontation with a neoNazi hooligan, Dewey Crowe (Damon Herriman), Givens disarms the shotgun-wielding Crowe by casually explaining the utilitarian purpose of his pistol: ‘I want you to understand something. I don’t pull my sidearm unless I’m gonna shoot to kill. That’s its purpose, huh, to kill. So that’s how I use it.’5 His confident declaration sufficiently intimidates a dumbfounded Crowe, and Givens wins this confrontation without having to draw his weapon. This is not to say that he is reluctant to do so. For Justified’s Marshal Givens is a man who seems ever-ready to use his weapon for its true purpose, which is to kill. Although simply brandishing a firearm diffuses this confrontation, Givens finds many opportunities in Justified to dispatch villains through the barrel of his gun. While there is clearly no shortage of gun-toting protagonists on television today, there is something decidedly odd about the return of such an unabashedly confident Westerner to the televisual landscape. Justified portrays Givens as an anachronism, a man from another time unsuited to the modern procedural dictates of criminal prosecution. Yet his celebrated ability to swiftly resolve conflicts with a gun drives us to the conclusion of most episodes. Justified thus resonates with both traditional Western gunplay and contemporary self-defense doctrine. Significantly, the show explores the gendered division of labor enshrined in the traditional Western alongside new legal interpretations of self-­defense pursued by women who have killed male partners following years of domestic abuse. Before exploring that aspect of the series, however, some stage-setting is in order. Justified’s pilot episode, ‘Fire in the Hole,’ opens with a hat—white, of course—and a shooting (see Figure 24). This white hat, which fills the screen until the camera pulls back to reveal tanned, bikini-clad bodies in a swanky Miami hotel, signals this character as our heroic ‘Western’ protagonist almost as clearly as the extra-textual association established by Olyphant’s previous role as Sheriff Bullock in HBO’s highly acclaimed

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24  Timothy Olyphant as Raylan Givens in Justified, 2010

series Deadwood. Clearly out of place in a suit, boots, and Stetson at a beachfront hotel in Miami, Marshal Givens confronts Tommy Bucks (Peter Greene), a ‘gun thug’ Givens had given twenty-four hours to leave town. With the time nearly expired, Givens rather calmly gives Bucks one final chance to leave before he ‘shoots him on sight.’ Bucks claims he is unarmed and, as Givens counts down the seconds, tension mounts, the camera cuts back and forth between the two adversaries, and we are made to wonder whether the Marshal will indeed shoot an apparently unarmed man. We need not wonder long, however, for Bucks draws a concealed gun, only to be shot dead by the quick-drawing Givens. Nor need we worry overmuch about our erstwhile hero’s moral compass, for as Raylan explains in the disposition that immediately follows this scene, ‘Let’s just keep it simple, huh? He pulled first, I shot him.’6 Givens’s killing of Bucks is thereby justified with a matter-of-fact declaration of American self-defense doctrine. The show’s pilot episode employs a similar strategy of complicating the particulars of an act of violence only to cut through such complexity by resolving it in defensive gun violence in two other scenes. The first occurs, as it were, off screen, when Ava Crowder (Joelle Carter) shoots her abusive husband Bowman in Kentucky, where Givens is posted. Although this shooting is not explicitly characterized as an act of self-defense within the episode’s dialogue, Ava’s shooting of Bowman is rather earnestly justified by continual references to his physical abuse. As she explains to Raylan, Bowman would beat her for seemingly any



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provocation, which could include her not filling the ice trays, Bowman’s own inability to play professional football—consigning him to working in a coal mine—and her miscarrying a child due to his beatings. When she shoots him with his own rifle she is neither contrite nor remorseful. In fact, as she touts the benefits of Lysol as a disinfecting agent, she seems more concerned with cleaning up and moving on than with having just killed a man. Bowman’s own brother Boyd (Walton Goggins) doesn’t blame her for the murder, because it ‘took spunk for a woman,’ and the state’s attorney negotiates a plea deal that reflects the history of physical abuse to allow her to avoid prison.7 While Ava’s killing of Bowman is never shown, and while she never explicitly claims that she acted in self-defense, this cycle of abuse and the seeming unconcern of any other character that a man has been shot and killed aligns the viewer’s sympathy with Ava and instructs us to read her actions as, well, justified. Had it been a real case it might have fit neatly into the series of cases discussed previously in Chapters 2 and 6. Justified, I would stress, despite its disavowal of its hero’s clear-cut portrait of the morality of his killings, has much in common with the most triumphalist of Westerns. Throughout the series, the complexities of threat and escape are subsumed rather neatly into a dramatic rendering of ennobled, defensive gun violence. Another instance of Justified’s strategy of moral or dramatic complexity simplified by defensive violence occurs at the end of the pilot, when Givens shoots Boyd Crowder, his one-time friend and coal-mining partner. Under investigation by Givens for bombing a church in Cincinnati, the born-again, radicalized Boyd professes admiration for Givens’s renowned shooting in Miami and asks him directly if their earlier friendship would hinder the marshal’s propensity for killing. ‘Would you shoot me, you get the chance?’ Givens’s reply, ‘You make me pull, I’ll put you down,’ mirrors his simple, unembellished explanation of the shooting of Tommy Bucks.8 The logic here is as clear as Givens’s confidence, for he will shoot only if he is made to—but when he does, it will surely be swift and decisive. The quip also foreshadows a confrontation between the two, a confrontation seemingly fated by Boyd’s ultimatum that Givens leave Harlan County within twenty-four hours. The confrontation between the two eventually occurs at Ava’s house, in the dining room, with Boyd sitting in the very chair in which his brother was recently killed. Boyd, exhibiting little in the way of sorrow for his dead brother, banters back and forth about the Tommy Bucks episode with Givens, tension mounting with each cut of the camera

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between the two, until Ava interrupts by pointing a shotgun at Boyd. This turn of events puts Givens in the position of being pressed into shooting his one-time friend. As Boyd is clearly more adept at firearms than Ava, the situation is clear. If Givens doesn’t shoot Boyd, Ava will die. So, following a neat piece of logic, Givens’s shooting of Boyd is, if not in defense of his own person, then perfectly consistent with a long Western tradition justifying violence to save a woman. Again, Justified duplicates here the gendered normativity of American self-defense ­doctrine—whether rendered diegetically or juridically—whereby defending women against threats is the exclusive province of armed, Anglo men. The logic inherent in this dramatic strategy is more than simply Justified’s way of interpolating extenuating circumstances into the plot only to clear away the underbrush of complexity through violent actions that are portrayed straightforwardly as defensive, for it also perfectly accords with the Heller decision’s inventive insistence on ‘an inherent right of self-defense [that] has been central to the Second Amendment right.’9 Certainly Givens is not the only character to use a gun in the show. But the villains in the series are quite clearly distinguished from its heroes. As it happens, Boyd survives being shot by Givens and continues to figure prominently in the series, along with his ‘commandos’ who are all clearly marked as heinous by their Nazi tattoos and racist epithets. More to the point, when these bad guys use firearms, they use assault rifles, shotguns, or machine guns—not to mention a rocket launcher in the pilot episode. By so clearly distinguishing good and evil uses of weaponry, Justified runs away with Scalia’s invocation of self-defense as the ‘core lawful purpose’ for using a handgun.10 As the series progresses beyond the pilot, its Westernness, if you will, fades a bit, although the show makes a point of highlighting Givens’s out-of-place dress, demeanor, and actions. Consistent references to Givens as a ‘cowboy,’ or the ‘Marlboro man,’ remind viewers that this anachronistic hero is a throwback. Givens’s renown with a pistol spreads as well, as he becomes known as ‘the one who pulled a Wild Bill,’ or ‘Gary Coopered up on that guy in Miami.’11 Givens’s African American partner, Rachel Brooks (Erica Tazel), wryly comments on his ostentatious Western-style hat while rationalizing his propensity for getting away with skirting the standard rules of engagement by noting that ‘being a tall good-looking white man with tons of swagger’ certainly does not hurt.12 Finally, the show is replete with throwaway allusions to Western films and iconography, including a Tombstone (1993) poster and an Overland Stage clock in the local Marshals Service headquarters.



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In Justified, Givens’s anachronism, along with his reluctance to conform to modern notions of due process, harmonize with his willingness to resolve conflicts by shooting the bad guys. Givens is, after all, an updated version of the gunslinging hero. Although he drives a Lincoln Town Car and carries a 9 mm pistol instead of a revolver or ‘six gun,’ the show’s plot and supporting characters largely rely on him to dispatch the villains at the end of his gun. Even as the show seems determined to remark, tongue planted firmly in cheek, on Givens as a man out of time and place, it just as thoroughly counts on him to operate at the margins of legal propriety to deliver justice.13 As the show progresses into its second season, the plot turns more squarely to the shenanigans of local criminal overlords, the Bennett clan, and it is here that Givens’s status as a man between worlds is most clearly articulated. Midway through that season, Chief Mullen references Givens’s local heritage—he grew up in Harlan County, Kentucky, after all—and his ability to understand the locals’ scheming ways, calling him the ‘hillbilly whisperer.’14 As Richard Slotkin has pointed out, this mediating figure, ‘the man who knows Indians,’ is a key structural element of the Western’s rigid formula of regenerative violence: ‘As the “man who knows Indians”, the frontier hero stands between the opposed worlds of savagery and civilization, acting sometimes as mediator or interpreter between races and cultures but more often as civilization’s most effective instrument against savagery—a man who knows how to think and fight like an Indian, to turn their own methods against them.’15 As the go-between who bridges the gap separating the social structures of US law enforcement from the criminal clans of Harlan county, Givens thus figures as a mediator, a hero not unlike Natty Bumppo in Cooper’s Leatherstocking novels or John Wayne’s Ethan from The Searchers (1956). We ought to wonder how much difference it makes that the opposing forces in Justified seem updated, contemporary. On the one hand it would seem a refreshingly modern take, almost a ‘post-racial’ fantasy, to have a white-hatted gunslinger fighting against Caucasian villains instead of Indians. On the other hand it takes little critical acumen to see neo-Nazi groups or an Appalachian crime family as yet another instance of a sublimated evil whose primary rhetorical function is to serve as foil to the putatively superior middle-class bourgeois notion of Anglo American citizenship. Givens’s putative function as go-between here, as the man who knows perhaps not Indians but at least what currently passes for savagery, is to champion deeply held American values of due process and equal opportunity, even if it must be done with a gun.

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Justified’s conception of villainy, then, looks less like a progressively contemporary take on modern social ills and more like the latest instance of the ascendancy of an Anglo American gunslinging hero whose gunslinging ways are justified by claims of self-defense. And here is the rub, for Justified is immensely entertaining. The show’s biting dialogue, which owes much to the original Elmore Leonard story, ‘Fire in the Hole,’ on which it was based, is matched by compellingly drawn villains and complemented by cathartically satisfying resolutions delivered at the end of a marshal’s gun. More important, perhaps, than Justified’s entertaining adherence to an old formula is the show’s success. When the show premiered on March 16, 2010 it was one of the most widely viewed debuts for FX ever, second only to The Shield in 2002. The show has garnered significant critical praise, along with an Emmy for Margo Martindale’s performance as the villainous Harlan matriarch Mags Bennett. Some rather savvy promotional moves went into the premieres of the first two seasons of Justified, both in the form of interactive video games. The first season was promoted through a free game entitled ‘The Crimeline,’ available on FX’s website.16 The game, developed by a marketing firm called The Promotional Edge (TPE), was designed to give ‘consumers the opportunity to serve as virtual “deputies” in the search for a fugitive that they tracked on an individualized map.’ TPE boasts that its success in this promotional effort resulted in the popularity of the show’s pilot episode. More interesting here is the promotional effort that preceded the second season, a game developed by FX and distributed through iTunes that highlights the shooting aspect of the show’s protagonist. The game, fittingly called Justified: Target Practice, was available for several months on a variety of mobile-device platforms.17 This admittedly juvenile game features a promotional still of a scowling Olyphant as Givens, gun drawn and pointed at the user, a clear visual allusion to The Great Train Robbery’s extra reel in which shots were fired toward the camera. The gameplay itself is a study in Manichean simplicity: not unlike carnival shooting games, the user here is to shoot targets that pop up, sparing the good guys and targeting the bad guys. The distinction could hardly be clearer, as the baddies are either pointing guns or reaching for them, while the good guys consist of friendly police officers, maids, old ladies, and women with babies. The return of the staid Western formula whereby villains who threaten the social order draw first only to be outmatched by a hero killing in self-defense is writ large in this rather simple exercise of interactive fantasy violence. Devoid of any moral ambiguity, this



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interactive game not only perfectly encapsulates the classical Western dichotomy of black-hatted villains and white-hatted heroes, but also serves as a fitting analogue of Justified’s glamorization of gun violence as a justifiable, defensive exercise. Gun violence as self-defense is the logical thread that ties Justified to the Heller decision and the long history of the Western genre. As we have seen in previous chapters, what was chiefly at issue in the Heller case was whether or not a policeman authorized to carry a weapon on duty could possess a handgun at his private residence. The Supreme Court’s decision in the policeman’s favor, in addition to its especially insistent language confirming the inherent right of self-defense, endorses the idea that regulating gun possession as had been done in the District of Columbia amounted to an unconstitutional infringement on an American citizen’s right to bear arms. Justified implicitly explores the implications of this decision throughout its first and second seasons by continually portraying Raylan Givens’s gun violence as defensive. The premiere of the third season, ‘The Gunfighter,’ which aired on January 17, 2012, rather explicitly returns to the topic of justifiable gun violence by staging two elaborate quickdraw set pieces.18 Both instances revolve around a deadly ‘game’ played by the episode’s main villain, Fletcher ‘the Ice Pick’ Nicks (Desmond Harrington), in which, after counting down from ten, both Nicks and his opponent reach for a gun that is placed between them. Whoever is the quickest to snatch the gun at the end of the countdown will, of course, win by killing the slower opponent. As indicated by his moniker as much as by his hat—black, of course—Nicks, however, is prone to cheating by letting the other man reach first so Nicks can stab his hand with an ice pick and then use the gun essentially unchallenged. We see this devious strategy unfold in the first confrontation when Nicks robs and kills a man. Prior knowledge of Nicks’s strategy allows Givens to win the second rigged quick-draw contest by outsmarting the predictable Nicks, even though the episode had gone to great lengths earlier to outline Givens’s temporary incapacity to shoot accurately or draw quickly due to a recent gunshot wound. The woof, to continue our metaphor, in these elaborately staged, suspenseful scenes of gun violence is composed of their being set in home spaces. The first kill-or-be-killed gun confrontation occurs in a private home, which Nicks has forcibly entered to steal some expensive watches. The homeowner is infamous for defending his business with a gun during robbery attempts, having killed four men in self-defense,

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and Nicks is disappointed that the man doesn’t try to draw on him. His mistake, trying to activate an elaborate alarm system to wait ‘for the cavalry to arrive,’ proves fatal, as Nicks has disabled the system.19 The second set piece occurs when Nicks confronts Givens in Givens’s own motel room, which happens to be where he lives. The motel room is clearly not as elaborate a dwelling as the house of the wealthy watch merchant, but it has nonetheless been clearly established over two full seasons of Justified that this is Raylan Givens’s home. This particular episode reinforces this point at length, staging an extended post-coital conversation between Givens and his ex-wife, Winona (Natalie Zea), about the suitability of the space as a home now that they have reunited and are expecting a baby. Moreover, Winona has tried earnestly to make the space more homelike, adding a potted plant and tablecloth, which we are shown by a camera pan from the bed to the shabby side table, as Givens wryly quips about her having put ‘lipstick on this particular platypus.’20 Furthermore, after his boss tells Givens to go home early for the day in keeping with his medical leave, it is to this motel room that he and Winona retire, only to be met at gunpoint by Nicks. It is important in my reading that Givens’s home is employed as a setting to further justify his penchant for gunplay because it is so clearly resonant with the facts of the 2008 Heller case, which turned precisely on whether or not a policeman could use a gun in his own home, outside the line of duty where he is otherwise authorized to carry a firearm. Justified’s Givens, we would do well to remember here, is also an agent of police power, but this staging of self-defense occurs in a private space wherein his authorization for mortal violence comes not from his role as a marshal, but from his status as a private citizen under attack within the sanctity of his ‘castle.’ Finally, after he outsmarts and shoots Nicks, Givens’s response to Winona—who has not only witnessed this gruesome scene firsthand from a distance of less than five feet in the cramped motel room/home but has also been made a participant by being required to count down from ten—is to apologize for the damage done to her tablecloth. The two scenes of defensive violence in home spaces from the first episode of Justified’s third season exemplify the Western genre’s richly symbolic resonance with contemporary fears. The first scene echoes the fears of those who claim that despite the extensive network of police protection afforded in our modern cities one still needs a handgun for self-defense in the home. The second scene of defensive, quick-draw gun



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violence underscores this notion by having an officer of the law, threatened in his home, however modest, defend himself with a handgun. These scenes further affirm the notion of a right to be armed for self-­ defense that resonates with the American conception of a self-reliant individual motivating the jurisprudence of American self-defense doctrine and culminating in the Heller decision. Resonant with contemporary legal issues, Justified ends up championing a heroic Anglo male gunslinger even as it poses his presence as an anachronistic threat to the stability of an ordered legal system. Working explicitly to explore the implications of the Heller decision, Justified seems, finally, to foster a sense of progress, the idea that we are somehow developing a more nuanced understanding of our unique legal right to engage in personal violence, a more compelling examination of the value of such violence, and a more complex exploration of the various social systems that can cohere under the rubric of American civilization. The show’s popularity demonstrates our continued dependence on this deeply cherished personal liberty, the right to stand one’s ground and kill an assailant—in short, one’s right to justifiably kill another. As a mediator between opposing social forces, a reconciler of violent inclinations with democratic values, and a laconic protagonist made heroic by killing only in self-defense despite his vengeful tendencies, Raylan Givens is, however, clearly a protagonist cut from the old Western cloth. This cloth, we would do well to remember, has been remarkably white. Indeed, Gwendolyn Audrey Foster’s notion of Hollywood cinema as ‘the garment center of white fabrication’ is particularly relevant here. As she goes on to illustrate, race has long functioned within televisual fiction as a foil to mythic constructions of whiteness: Whiteness as a construct depends on myths and distortions. What better place than the cinema to define, create, and maintain such myths and ­distortions. …The range of human experience is denied to non-whites in a huge percentage of films. I am not suggesting that there are not numerous examples of on-screen performances of the good other or the bad other, but one must remember that cinema in itself is largely a white space, and often the figure of the other is only used in service of what constitutes an other to whiteness.21

A Western film contemporaneous with Justified, then, that consciously presents a satisfyingly resolute notion of gunslinging justice in the hands of an African American protagonist, ought to seem more like ‘progress’ in the evolution of the normative portrait of American-style gunslinging

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justice. The progressive nature of Quentin Tarantino’s Django Unchained is especially apparent when juxtaposed with the hesitant, stuttering, and ultimately unconvincing disavowal of Givens that we witness in Justified. The film’s difference is also felt in relation to earlier Westerns featuring African American protagonists. Given the paucity of black characters in this cultural tradition, and given the more than troubled and troubling relationship people of color have had to the rights, privileges, and immunities of this legal system, it is little wonder that when a black character appears in a Western, the tropes and confines of the genre strain to contain this disrupting presence.22 We may be forgiven, then, if in 2012 we were still unaccustomed to seeing darker faces triumphantly astride a horse at the movies. I am referring here to the ‘arrival’ scene from Django Unchained when the eponymous hero (Jamie Foxx) and King Shultz (Christoph Waltz) ride into an unsuspecting frontier town, their arrival punctuated by intercutting reaction shots of horrified, disgusted, and frightened citizens. This less-than-warm welcome prompts Shultz to ask why everyone is staring, and Django replies that ‘they ain’t never seen no nigger on no horse before.’ The scene is punctuated by a signature Tarantino jump-cut to the reaction of a horrified saloonkeeper whose only recourse seems to be to run away to fetch the sheriff. The threat Django’s choice of transportation poses here is important to pause over. Riding a horse symbolizes several privileges and prospects, such as the legal right to own and control property and the economic opportunity to earn the funds needed to procure and maintain such a steed, rights and opportunities absolutely denied to a black man at the time. To be blunt, the presence of a black man on a horse in a Southern town in 1861 is a threat because it humanizes him; and the entire socioeconomic structure of society in that time and place depended on denying that such an individual was human. The scene of diegetic horror narrated above is somewhat of a generic staple, borrowed from earlier Blaxploitation Westerns such as The Legend of Nigger Charley (1972) and Boss Nigger (1975). Indeed, some version of this scene appears as an almost de rigueur set-piece for Westerns that feature black characters. Frontier towns in the Western are always, it seems, on shaky footing, constantly under siege by outlaws and the hired guns of competing property interests. As a genre dedicated to mediating between the American legal system and other methods of social organization and dispute resolution, this pervasive threat is a prerequisite to the ultimate validation of the aims and spirit, if not the procedural



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nuance, of the American legal system. Nothing seems to threaten the integrity of this imaginative space, however, more than the presence of racialized bodies. Other races and ethnic groups have traditionally garnered more screen time within the Western genre, albeit they are largely relegated to stereotypes, plot devices, or foils for the validation of the Anglo hero. African Americans, however, have fared differently in the genre, namely by being conspicuously absent. This absence is perhaps all the more remarkable given that estimates place the proportion of working nineteenth-century cowboys who were African American as high as one-third.23 Mel Brooks’s satirical epic Blazing Saddles (1974) illustrates the consequences of the relative absence of racial blackness in the Western genre in grand parodic style. When Attorney General Hedley Lamarr (Harvey Korman) and a corrupt territorial governor conspire to swindle the town of Rockridge of its citizens’ property rights in 1874, their strategy is to continue to manipulate the legal apparatus at hand. Realizing that ‘law and order is the last thing I want,’ Hedley appoints a lame-duck sheriff, a sheriff who will so offend ‘the citizens of Rockridge that his very appearance would drive the citizens out of town,’ thereby leaving the town wide open for real-estate profiteering ahead of the railroad’s arrival. In a satirical saga that opens by punning on the stereotype of the contentedly singing black and his ‘good old Nigger work songs,’ the natural candidate to terrify the citizenry of Rockridge is a black man, and the otherwise doomed Bart (Cleavon Little) is appointed to the post. His arrival in the town of Rockridge is played to great comic effect, and the comedy depends on delaying the use of the word ‘nigger.’ First he is referred to as a ‘ni … t’ by the absurdly comic Governor William J. Le Petomane (Mel Brooks), who stops short of the full articulation of the racial slur, not wanting to offend anyone when the plan is first hatched. Adorned in an impeccable new outfit, the sartorial flourishes of which include Gucci saddlebags, sitting proudly astride a horse to the accompaniment of the Count Basie Orchestra’s big-band swing, Black Bart rides triumphantly, albeit ahistorically, into town (see Figure 25). The town eagerly awaits his arrival, with full marching band, festivities, and banners at the ready. Bart’s race is marked for the second time by a stock Western character, the unintelligible townie, who, while manning the lookout post to announce the sheriff’s arrival, shouts several garbled warnings to the citizenry of Rockridge, all to no avail over the sound of the church bell and the marching band.

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25  Cleavon Little as Sheriff Bart in Blazing Saddles, 1974

Bart’s arrival in town, like Django’s, is intercut by reaction shots of a confused, horrified, and terrified citizenry. The band stops abruptly when Bart is finally in full view and a weighty silence is broken only by the honorary chairman of the welcoming committee. He cannot, however, successfully deliver his carefully rehearsed speech, announcing instead the sheriff’s arrival with ‘It is my privilege to extend a laurel and hearty handshake to our new … nigger.’ Bart calmly takes the stage, and reaching inside his waistband for the legal documents that confirm the legitimacy of his post, says, ‘Excuse me while I whip this out,’ punctuating the scene by a final comic gesture of racial identity, this time the old cliché of the threatening black male phallus, to the horrified screams of the alarmed citizenry. As mentioned above, the ‘arrival scene’ appears prominently in the two installments of the Blaxploitation Western trilogy starring the former football star Fred ‘The Hammer’ Williamson. The first film, The Legend of Nigger Charley, plays the scene rather mutedly, establishing the citizenry’s fear and horror at the presence of black men in town through several reaction shots, and the scene culminates with Charley (Williamson) insisting that his horse be taken care of because while he is black, his ‘money is white.’24 The scene is more intent, in other words, on dramatizing the recently escaped slaves’ resolution to stop running and rest in town than it is on dramatizing for its own sake the racism of the white citizenry. In the third film, Boss Nigger: aka Boss and the Black Bounty Killer (1975), Boss (Williamson) and his sidekick Amos (D’Urville Martin) ride into the town of Pecos—conveniently lacking a sheriff—where they will install themselves as the ‘proper authorities’ so that they may continue to hunt



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Jed Clayton (William Smith) for the bounty on his head—to the accompaniment of 1970s funk guitar music. Their arrival is again punctuated by several reaction shots of worried citizenry. Amos remarks, ‘Sure is funny how they think we is the devil. Folks always scarred of things they don’t know much about, Amos, I reckon folks in this town ain’t never seen blacks before.’ Here the scene’s substance is more reflective than the comic tone invoked in Blazing Saddles, with Williamson’s high-minded tolerance of explicit racism setting the stage for an uneven Western that, although part of a financially successful spate of Blaxploitation Westerns, can come to terms with the hero’s blackness only by shooting him in the back, betrayed by an agent of the American legal system. The ‘arrival’ scene in Django Unchained differs substantively from those seen in The Legend of Nigger Charley, Boss, and Blazing Saddles insofar as Tarantino plays on the comedy of a black man’s assuming a position of authority just briefly, before Django’s race quickly takes a backseat to the more pressing legal matter that has brought the unlikely duo to town, for Shultz is here to kill a man for a bounty. It is here that Django’s divergence from earlier Blaxploitation Westerns—especially the Williamson trilogy on which Tarantino is so obviously riffing—is most keenly felt. 25 By so quickly transitioning from the arrival scene to the killing of a sheriff by the white bounty hunter and worrying over the justifiability of this action, Django’s race, for an instant at least, ceased to be the issue. As Aisha Harris has noted in her journalistic account of the influence of these earlier films, the three films starring Williamson worked explicitly to present his gunslinging heroics as benefiting a community interest, especially a community of racial and ethnic minorities—notably Mexicans and Native Americans—a community whose solidarity is very much based on shared oppression by whites. She then notes the importance of Django’s vengeance as an individual pursuit: Django Unchained offers its own slave-revenge fantasy, but it sticks closer to the more conventional aspects of the Western than any of Williamson’s films do—in Tarantino’s world, the outcast individual is mostly in it for himself; he’s not standing up on behalf of his fellow subjugated man. You can choose to identify with Django, but if you do, you’re rooting for his overcoming of oppression, not a collective victory for the black race.26

Unlike The Legend of Nigger Charley, The Soul of Nigger Charley, or Boss Nigger, in other words, the version of the traumatic arrival of racial blackness we see in Django Unchained makes the moral complexities of killings an

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individual matter. Schultz’s actions make the issue of killing here the stuff of individual justification, not communal defense or even collective action based on racial solidarity. Amazingly, that this man has recently been elected sheriff provides nothing in the way of deterrent for Shultz, who calmly, almost methodically, shoots him twice in full view of dozens of onlookers before instructing the saloonkeeper to fetch the marshal. Certainly Django’s race will soon again be an issue in the film, and to the dismay of many a commentator the use of ‘nigger’ will continue with reckless abandon, but for now it is important to note that at this moment it ceases to be an issue.27 When the brazen killing of one citizen by another is occurring, we are led to believe here that the justifiability of a homicide is solely an issue of individual rights and legal justifications, that race is not weighing on the scales at this moment of ‘justice.’ This seems a deliberate ruse, though, for the rest of the film will be very much ‘about’ race and justice. Django Unchained is remarkable for its exploration of the difference race makes at the intersections of capitalism and the American legal system. The film does so in several ways: by explicitly marking the corporeal cruelty of slavery; by critiquing justifiable homicide through linking bounty hunting and slavery as a flesh for cash business, i.e., untrammeled capitalism run amok; by shifting the function of righteous gun violence from that of a collective issue of racial solidarity to one of individual, personal motivations; and by borrowing Western gun iconography—the rifle of moral surety and the pistol of efficient justice—to provide a moral outline for the film’s climactic structure of feeling: the sheer fun of morally justified, and this time racially substantive, vengeance. Django Unchained shares, like much of our current popular culture and contemporaneous Westerns, an affinity for the corporeal. This focus on bodies, on how they are used, abused, and traded for cash as entertainment and commodities, represents an oblique method for working through anxieties about the integrity of bodies and assuaging fears concerning changes in laws regulating justifiable homicide. The corporeal, the tie to the economic history of the United States, and the justification provided by writing, paper, and the government, function quite a bit more explicitly in this tale of revenge than we would have seen in an earlier Western.28 Other critics of Django Unchained, particularly in the popular press, scholarly criticism, and social media, have been greatly interested in the use of the word ‘nigger’ as well as the historical inaccuracies of the



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film, particularly the gruesome invention, Mandingo fighting.29 I am more interested in the explicitness of bodies in the film, its corporeality. As I have argued elsewhere, we are witnessing a shift toward the corporeal in the American Western, as exemplified in series like HBO’s Deadwood. This shift toward a focus on the body, which mirrors a similar shift in other contemporary genres—the police procedural, the legal procedural, the forensic drama, the medical drama, and the detective genre—is about alienation from material labor: Deadwood’s excessively visceral fascination with filth, degradation, and messy personal violence that lacks a larger redemptive purpose thus narrates the coming of a decentered corporate capitalism that speaks not only to the anxieties of its nineteenth-century protagonists, but also underscores contemporary concerns over the changed economic landscape of global capital and the rise of immaterial labor in a post-Fordist system. This anxiety is evinced by the contemporary televisual focus on immaterial labor and a corporeality that is rendered through fetishistic forensic detail … the socioeconomic angst propelling these televisual heroes reduces corporeality to a litany of clues, cancers, and corpses. By extension, Deadwood’s penchant for representing bodily violence in nontriumphalist terms, juxtaposing killing with the general mire and malaise of a host of bodily sufferings and vulnerabilities, participates in a contemporary angst over use-value and the body by highlighting what these other shows elide.30

Although nearly a decade elapsed between the airing of Deadwood and the release of Django Unchained, I read our continued cultural fascination with the body as a means of working through a sort of trauma or frustration about our lack of bodily involvement in our work. We live in an immaterial labor society, and yet we are fascinated by the body. Resonant with this cultural paradigm, Django Unchained lingers on several medium close-up shots of the scarred, whipped backs of slaves to mark evil and injustice. The film’s candid portrayal of the corporeal cruelties of slavery continues in an unrelenting litany of bodily sufferings and abuse: repeated close-ups of manacles and chains; explicit reference to the sexual exploitation of slavery in the figure of ‘comfort girls’; excessively graphic and brutal Mandingo fighting; plantation houses whose notoriety is founded in their extracurricular activities, such as the prostitution at the plantation owned by Big Daddy (Don Johnson) plantation and the prize fighting at Candyland, owned by Calvin Candie (Leonardo DiCaprio); flashbacks to horrific whippings, threatened castration, cruel and unusual punishments, like the coffin (‘the box’ used to bake ­recalcitrant slaves in the hot sun); and

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the forensic detail of Monsieur Candie’s pseudo-scientific racism and phrenology. It is not enough to explain away the decidedly grisly nature of this film by referencing Tarantino’s style. For the film’s graphic concern with bodily matters is resonant beyond Tarantino’s signature bloodletting and messiness. Django Unchained is also resonant with the broader televisual landscape of our neoliberal moment, replete as it has been with an obsession over ailing bodies in medical dramas such as ER (1994–2009), House, M.D. (2004–2012), and Grey’s Anatomy (2005–), or contemporary police procedurals that revel in forensic detail such as CSI: Crime Scene Investigations (2002–) and its two spinoffs, CSI: Miami (2002–2012) and CSI: New York (2004–2013). Beyond the graphic renderings of the bodily suffering experienced during slavery, Django Unchained, like Justified, is also a remarkable exemplar of contemporary tensions surrounding justifiable homicide. While Justified has focused on the home spaces that mythically condone self-­ defense and has worried over the anachronism of Anglo ascendancy, Django Unchained instead offers an oblique resonance with contemporary racial tensions within high-profile self-defense cases. Unlike earlier Blaxploitation Westerns—especially the Williamson trilogy referenced above, but Van Peebles’s Posse shares much in this regard—which appealed to racial solidarity to buttress a notion of ennobled defense as a communal enterprise, Django Unchained sees ennobled defense, and righteous, justifiable gun violence as a personal, individual matter.31 The film engages in this critique by linking bounty hunting and slavery in a portrait of untrammeled capitalism run amok in the figure of King Shultz, the erstwhile dentist-turned-bounty hunter who saves Django and enlists his help in the pursuit of further bounties. To pursue satisfactory revenge and right the initial injustice of slavery, Django must dirty his hands, so to speak, in the messiness of bounty hunting; he must participate, in other words, in the explicit trade in bodies for cash. King Shultz is a rather spectacular and sympathetic figure even though, or maybe because, he admits to being the white guy suffering from liberal guilt. Indeed, he clearly sacrifices himself at the end as much out of his own guilt and growing aversion to his business and the people in it, most notably the repulsive Calvin Candie, as he does to enable Django’s improbable escape. He makes a point of saying, several times, that he kills for money and explicitly aligns this rationale with the film’s moral outrage, slavery, noting that bounty hunting and slavery is each ‘a flesh for cash business.’



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And yet, Django Unchained seems to want it both ways, for although he occasionally backs up his killings with a tangential reference to self-­ defense, Shultz hardly needs this excuse. In short, he is otherwise justified in killing by the legal apparatus at hand. His self-defense claims, in other words, are superfluous. He is justified by the law in his killing, and he does so spectacularly in two scenes. The first scene wherein Shultz kills for a bounty, the opening gunplay set-piece when we are introduced to Django, he invokes self-defense, and then trumps this claim with reference to the bounty out on the recently dead man, the state-sanctioned action that legitimates this killing. Put another way, King Shultz represents the United States, enacting its sovereign power to kill its own citizens; he needs no further justification for these homicides. Thus Django Unchained shifts our moral compass to allow for a sustained questioning of state-sanctioned killings. While this resonates with several international issues—President Obama’s unparalleled escalation of drone strikes, for one—I read the film’s examination of justifications for killing as an anxious working-through of domestic matters, not the least of which is the increasingly aggressive codification of ‘Stand Your Ground’ laws at the state level. In a reversal of the Western’s standard notion of racial violence, Shultz’s mercenary pursuits serve as a foil to prop up Django’s killings as more easily justifiable. Shultz’s brazen killings provide the initial backdrop for Django’s development of a decidedly individual exercise of the right to defend oneself against mortal violence without retreating. Now certainly the presence of a number of black bodies who do not count as people, much less citizens, complicates these matters in the film. More pointedly, I argue that the presence of the black bodies allows this conversation to happen; it brings the issue to the fore. Were there not all these slave bodies present that were illegible as people but legible as commodities within a capitalist system of exchange, the film would not posit such a frank, forthright justification for Schultz’s institutionally sanctioned killings. The corporeal presence of racialized blackness in this scene enables us to see the intersections of capitalist profit and a legal regime that specifies certain bodies as fungible commodities, the very discursive intersections operative within the diegetic setting of the nineteenth-century American South. But the film is more complex than this because of the quandary of the corporeal, the messiness of bodies. Django kills people because they have been trafficking in flesh for money, yet Shultz also trades flesh for money. The difference in Schultz’s authorization, in other words, depends on legal niceties, niceties that exist in the form of the diegetically contemporary

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US government declaring certain bodies, those wanted dead or alive and those deemed subhuman due solely to phenotypical variation, as expendable. Django’s authorization, however, comes from a structure of feeling generated by the film—a feeling I suspect is widely shared by its audience—of growing indignation over the horrors of slavery in our past and its continued aftermath of systemic inequalities in our present moment. Another scene obliquely comments on the contemporary issue of justifiable homicide and the rising tide of ‘Stand Your Ground’ legislation, wherein Shultz shoots the sheriff of an unsuspecting frontier town. Here, however, self-defense is hardly an issue within the film itself. Shultz has, by his own admission, shot the town sheriff dead, ‘like a dog in the street.’ But the ‘dead-or-alive’ warrant and bounty on the man literally represents state-sanctioned homicide for profit. Put another way, the exercise of sovereignty and biopower go together hand and glove here, as ‘good’ citizens kill other, albeit ‘bad’ or condemned, citizens for ­financial gain. Let us be candid here: King Shultz kills people for money, a profession that, within the generic confines of a Western, ought to make him a villain. But the money awarded to him by the US government or the territorial jurisdictions within it for killing evildoers with a bounty on their heads doubly legitimizes his killings. Certainly, the administrative technologies of neoliberal biopower can find few clearer symbols than a piece of paper that enacts the fungibility of both bodies and culpability for crimes—there being no trial in the execution of such a warrant, but instead a monetary reward. Shultz’s trump card, if you will, that triply ensures that his mercenary pursuits will be justified, is that the majority of folks he kills are, if not downright slavers, explicitly racist. In addition to its corporeal concerns and oblique commentary on justifiable homicide, Django Unchained should be read as an exemplary neoliberal Western for the ways it utilizes Western gun iconography—the rifle and the pistol—to provide a moral outline for the film’s climactic structure of feeling. Put another way, the film insists that Django, like the Western gunslingers detailed in Chapters 4, 5, and 6, uses firearms only in the service of righting grave injustices. To administer justice in satisfactory Western style, Django obviously needs to be adept with his firearms. He has to master both the long-range shot of moral victory and the quickdraw heroics of frustration with the slow procedural niceties of American ‘justice.’ I argue therefore that the film wraps all this up rather neatly by having Django’s aim, his accuracy, provide the moral justification for his



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spectacular, excessive vengeance that will fuel the film’s climax. It clues those familiar with the genre into the ‘moral rightness’ of his vengeance. This is illustrated quite succinctly the first time Django uses a rifle, and again when Django kills Big Daddy (Don Johnson) with the same rifle. Through a wry visual allusion to the supremacist-inspired epic Birth of a Nation (1915), the whole folly that opens this scene with the misshapen bags worn by the dimwitted posse of white supremacists is supposed to be funny, and it is. Things turn more serious, however, when Django takes steady aim with Shultz’s rifle and shoots the retreating Big Daddy. The seriousness of the moment is cued for viewers by a slow-motion, close-up shot of the legs of Big Daddy’s horse, obscuring the spurting of blood we have come to expect from Tarantino, until we see Big Daddy fall off the running horse. Although he has shot an unarmed, retreating man, in other words, the Western’s conventions dictate that this killing is justifiable by emphasizing the slow, careful aim taken by Django (see Figure 26). This shot with a rifle demonstrates the discipline and deliberation reified in American self-defense doctrine while simultaneously providing moral justification through the death of an unrepentant racist. Clearly, as Shultz exclaims, ‘the kid’s a natural.’ Django also utilizes the quick-draw pistol, an iconographic strategy within the grammar of the Western genre that fetishizes his pistol shots as the execution of swift, immediate action. He does so several times, but two moments stand out: when he shoots the Australian slavers (Tarantino’s signature cameo in this film is as one of these Australians), and when Candyland is besieged after Shultz kills Calvin Candie.32 In both moments it takes little imagination to read these killings as

26  Jamie Foxx as Django Freeman and Christoph Waltz as Dr. King Schulz in Django Unchained, 2012

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authorized under the rubric of self-defense. In each scene, Django is threatened with grave bodily harm—slavery—or death, and he has no option but to retreat from these threats. That he kills his assailants in these moments seems, within the logic of American self-defense, entirely reasonable. Furthermore, Django’s killings here work to further the pursuit of justice, the righting of the initial harm of slavery that propels the entire plot. As such, the death of each of these assailants represents the prompt dispatch of a hurdle that stands in the way of justice. We should not move too quickly past our consideration of the structure of feeling the film creates around the horror of slavery. It is significant that the injustice here is slavery, and it is more significant still that this injustice gets ‘righted’ in an imaginative popular fantasy by a gunslinging ‘Westerner’ utilizing the genre’s iconic firearm tropes. Combined, these two iconic firearms—the rifle of moral surety and the pistol of expediency—ensure that Django’s vengeance is felt as the ‘right thing to do.’ He is authorized to kill, somewhat like Shultz, but his authorization comes not from the government within the film’s diegesis, but for Django from the contemporary structure of anti-racist, ‘post-racial’ feeling that is horrified by the trafficking of people in slavery. This structure of feeling differs also from that established by earlier slave-revenge Blaxploitation films that relied on a portrait of racial solidarity among peoples of color. For Django’s vengeance is a decidedly personal affair. Furthermore, racial solidarity is seriously compromised in this film not only by Django’s assumption of the role of ‘one-eyed Charley’ or the requirement that he exhibit the same brutality toward enslaved souls as the thoroughly villainous whites who populate the movie, but also in the film’s fully realized portraiture of the breadth of African American humanity, especially in the figure of the wretchedly manipulative Stephen (Samuel L. Jackson). Put another way, by offering a fuller range of African American characters here than in earlier films, and by subsuming the vengeance of an African American protagonist into a personal, individual matter that is hardly an attempt to fight for, much less speak on behalf of, other members of a racial community, Django Unchained, then, occupies a rarefied space within the Western genre by finally allowing someone other than Anglo whites to be ‘simply human.’33 More succinctly, the hero in Django Unchained, unlike those of earlier ‘Black Westerns,’ here fights his own fight, and for his own ends. He is decidedly not portrayed as ‘representative’ of a racial group or its interests. As a parting irony, that the climactic spree of violence we witness



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in Django Unchained is portrayed as an individual pursuit, as opposed to presenting this hero as a racial representative per se, is absent from the alarmist conservative reaction to the film. For example, Jeffrey Kuhner’s piece for the Washington Times, ‘Jamie Foxx and the rise of black bigotry: Age of Obama viewed as payback for slavery,’ misses the point of the film entirely precisely because Kuhner’s complaint about racial tensions amounts to seeing Foxx’s imagined character as a revival of Black Nationalism. In other words, Kuhner seems unable to avoid seeing Foxx’s performances of indignation at racial exploitation, in either his fictional portrayal as an avenging hero or his monologue on a comedic show such as Saturday Night Live, as anything other than the utterances of a ‘representative’ race-man, improbably linking Django Unchained with Malcolm X’s speeches and political activism in a frivolous complaint about ‘reverse racism.’34 The irony here is that the film’s portrayal of the fuller humanity of racially black characters, which avoids portraying Django’s actions as representative of anything more than his own individual pursuit, is the more revolutionary, more progressive aspect of the film, and surely ought to frighten Kuhner more than the specter of Malcom X. In a final refraction of contemporary tensions, this structure of feeling also authorizes more elaborate, more destructive, more punitive violence to wrap up this sordid tale of racial exploitation. It is this structure of feeling, the ‘post-racial’ dream of progress writ large by Barack Obama’s presidency, which enables the vengeful, admittedly excessive destruction of Candyland to serve as the proper conclusion for Django Unchained. In short, although the Western has long authorized killings by gunslinging, it can now satisfyingly do so with dynamite. The point, as it were, of this brief reading of Django Unchained has been to point out how race operates on a normative level within the intersecting network of discursive regimes that make up the film and its contemporary moment. In other words, it cannot be simply a coincidence that, at this moment, when self-defense is a prominent issue with significant repercussions for people of color, a Hollywood Western turns explicitly to race to ponder the issue of justifiable homicide. Looked at another way, the film seems to argue that, within the putatively objective codification and application of the law, the substantive matters of race and gender are omitted to the detriment of the current conception of ‘justice.’ Put another way still, when race is part of the picture, the whole game changes. When race gets revealed as a structuring and systemic concept underlining the American mythology of progress, the Western

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genre’s neat, lily-white mythos of Anglo ascendancy seems more naïve, and more harmful perhaps, than ever before. It is against this embarrassing history that Foxx’s portrayal of Django is so refreshing, offering as it does a racially substantive conception of justice absent an appeal to racial solidarity. This book has mapped paradigmatic shifts in three interwoven discursive regimes: the shift in Second Amendment jurisprudence is a shift from a collective duty to keep and bear arms for the common defense—with the individual right to bear said arms for self-defense thrown in as almost an aside—to a strident emphasis on the individual right to keep and bear arms for self-defense absent any consideration of militia service; the shift in American self-defense doctrine is a shift from a duty to avoid using force—with exceptions allowed when retreat was unavailable or when an attack occurred in one’s own home—to an expansive, ongoing codification trend that justifies homicide provided the threat and response are deemed reasonable within a growing number of jurisdictions; the shift in the Western genre’s justifiability of vengeance—generically required to be delivered via firearm—is a shift from preserving the sanctity of the private home, private businesses, and the nation to the torture and brutalization of bodies. The injustice that propels both the plot and the gunslinging hero’s avenging heroics is, in other words, now explicitly the treatment of people as commodities. The corporeal, in other words, is the structure of feeling that best corresponds to both the neoliberal state and contemporary anxieties over threat. When the justifiability of homicide turns on whether or not the perception of threat is reasonable, our imaginative reconciliation of this tension is rendered through threats to the integrity of the body. Thunderous warnings, off-camera action and insinuation, and sanitized violence will no longer cut it. Instead, the affective response in contemporary Westerns, as in much of our other popular culture, demands that bodies be dissected, tested, and specified in elaborate, specific detail. In other words, bodies must be more than used, they must be abused. In a supreme feint of neoliberal imagination, Django’s emotionally satisfying vengeance is the ‘cure’ to all this messy business of trafficking in flesh, the elaborate explosion and horse dance an ironic send-up of the very neoliberal specification and commodification of bodies that the film purports to deplore. In summary, Django is justified in his actions because he has experienced a grave injustice, slavery. That the injustice propelling the plot can be due to racism, that the racially black characters in the film, like



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Broomhilda (Kerry Washington) and Stephen, are complex, nuanced portraits that go beyond stereotypes, novelties, and jokes represents a kind of progress. This racially motivated injustice also resonates within our contemporary moment in no small part because we are feeling the very real effects of the difference race makes on the putatively blind scales of justice. A 2013 report prepared by John K. Roman, a senior fellow at the Justice Policy Center in the Urban Institute, demonstrates that significant racial disparities can be found in rulings finding homicide justifiable in the American legal system: ‘With respect to race, controlling for all other case attributes, the odds a white-on-black homicide is found justified is 281 percent greater than the odds a white-on-white homicide is found justified. By contrast, a black-on-white homicide has barely half the odds of being ruled justifiable relative to white-on-white homicides. Statistically, black-on-black homicides have the same odds of being ruled justifiable as white-on-white homicides.’35 Regardless of the motivations behind the passage of the numerous ‘Stand Your Ground’ laws since 2005, race is clearly not a neutral factor in the US legal system’s adjudication of justifiable homicide. What difference, we may be forgiven for wondering, does it make that the protagonist of a popular, acclaimed, and nuanced Western is marked by racial blackness? In short, who cares if the gunslinging hero is black? Django Unchained is clearly not the first, nor the only, Western with a black protagonist. Moreover, as Terri Francis has pointed out, the film was made, marketed, and received by audiences with a mixture of generic imperatives, structures, and expectations: a Tarantino picture, a Blaxploitation film, and a Spaghetti Western, all ‘rolled into one.’36 In considering the film’s role within the Western genre, at least, it does matter that blackness is no longer relegated to spectacle, joke, or stereotype. Neil Campbell’s worry about continuing hegemony in the genre’s portrayal of racial characters, which formed the epigraph to this chapter, explicitly calls into question the efficacy of altering such a staid form as the Western genre. I share Campbell’s concerns about the politics of the genre’s representational tropes; as I hope to have made clear through this book’s focus on the normative power of discursive resonance, I also share Campbell’s suspicion that simply changing the cast of characters is a far cry from social, political, or even juridical change.37 There is a link between who we portray as our fantasy gunslinging avenger and the way the US’s legal regime has always proffered gun rights and privileges prejudicially. To put it plainly, it cannot be a

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coincidence that both the cowboy hero and the sovereign citizen who is allowed to kill to protect his property have been white. I have no delusions that Hollywood’s fantastic resolutions, however allegorically resonant they may be with the complex of real-world issues that continue to develop in step with our authorization of private gun ownership and justifiable homicide, should be read as probable prescriptives for legislative change. Such wholesale change, however, cannot occur without a corresponding shift in the normative paradigms that inform the US legal system. The apparatus of law changes slowly, and it continues to be a tradition in American popular culture to try out such changes in fictional representation. Working as it does in those spaces between ‘law as it is and law as it should be,’ the Western genre’s evolving notion of when, how, and for whom justice gets enacted should be seen as progressive.38 Just a few years before I was born, Philip French’s Westerns pondered the Western genre’s future from the perspective of 1973, speculating about a time when the form would cease to be relevant: Yet somewhere between the past and the present lies the disruptive point where the Western no longer responds to our present needs or to the urgent demands made upon it, where the rituals and our understanding of them will destroy themselves. We do not appear to have reached that situation yet, but it would be foolhardy to believe that the genre is capable of such infinite renewal that such a time will not come.39

More than forty years later, this future when the Western genre no longer works seems rather distant indeed. Should such a time arrive when gun possession and self-defense are no longer hotly debated in the United States, the end of the Western genre may well be a good thing. In this future when racial, sexual, and ethnic minorities are granted not just the full rights, protections, and guarantees of the American legal system but also full incorporation into our popular culture as ennobled embodiments of our cherished and contested civic values, the final obituary for the Western genre may well be a moment for celebration. I do not, however, expect to witness the demise of the Western within my lifetime. In the meantime, it matters, finally, that the diversity of minorities and women portrayed as heroic has changed—both quantitatively and qualitatively—within our popular culture’s reification of gunslinging justice. For how we imagine change is integral to how we enact it.



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Notes  1 Neil Campbell, Post-Westerns: Cinema, Region, West (Lincoln: University of Nebraska Press, 2013), p. 15.  2 Robert B. Pippin, Hollywood Westerns and American Myth: The Importance of Howard Hawks and John Ford for Political Philosophy (New Haven, CT: Yale University Press, 2010), p. 66.  3 For a fairly recent and succinct instance of this formulation, see Edward Buscombe’s foreword to Andrew Patrick Nelson’s edited collection, Contemporary Westerns: Films and Television Since 1990 (Lanham, MD: Scarecrow Press, 2013), pp. vii–x.  4 Andrew Patrick Nelson, ‘Introduction: Hollywood Westerns 1990–2010,’ in Nelson, Contemporary Westerns, pp. xiii–xxi; xvii–xviii.  5 Quotes from Justified have been transcribed from each season’s respective DVD sets and will be referenced hereafter by a season and episode number; the citation for this Justified quote from the first episode of the first season, then, would be ‘1, 1.’  6 Ibid.  7 Ibid.  8 Ibid.  9 District of Columbia v. Heller, 554 U.S. 570 (2008), p. 56. 10 Ibid., p. 58. 11 Justified, 1, 3. 12 Ibid., 1, 4. 13 An agent of the American legal system who operates outside the strict margins and regulations of the legal system to deliver emotionally satisfying ‘justice’ has a broader appeal and more diffuse resonance within contemporaneous television, being no longer the sole province of the Western genre. Two police procedural series, Chicago P.D. (2014—) and the remodeled Hawaii Five-O (2010—), both feature protagonists who must, quite regularly and with great zeal it seems, step outside the bounds of due process and regulation to right grave injustices. 14 Justified, 2, 4. 15 Richard Slotkin, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (New York: Macmillan, 1992), p. 16. 16 At the time of this writing, these interactive features are no longer part of Justified’s presence on the FX website. A screenshot, however, of one of the promo efforts is available on the website of the promotions firm, The Promotional Edge, at http://tpeinc.com/portfolio/#prettyPhoto[pf]/4. Accessed July 13, 2017. 17 This game is no longer being distributed by iTunes. At the time of this writing, screenshots of the game, however, could be found at this app

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review site: www.appszoom.com/android_games/arcade_and_action/just ified-target-practice_wtph.html. Accessed July 13, 2017. 18 Justified, 3, 1. 19 Ibid. 20 Ibid. 21 Gwendolyn Audrey Foster, Performing Whiteness: Postmodern Re/Constructions in the Cinema (Albany: State University of New York Press, 2003), p. 93. 22 While a full accounting of the subset of Westerns that feature African American protagonists demands sustained study several times over, several important films bear mention here: The Trooper of Troop K (1916), The Bull Dogger (1922), The Crimson Skull (1922), Harlem on the Prairie (1937), Two Gun Man from Harlem (1938), The Bronze Buckaroo (1939), Harlem Rides the Range (1939), Sergeant Rutledge (1960), Major Dundee (1965), The Professionals (1966), 100 Rifles (1969), Man and Boy (1971), Buck and the Preacher (1972), The Legend of Nigger Charley (1972), The Soul of Nigger Charley (1973), Blazing Saddles (1974), Thomasine and Bushrod (1974), Boss Nigger (1975), Take a Hard Ride (1975), Posse (1993), Cutting Horse (2002), Brothers in Arms (2005), the most recent iteration of The Magnificent Seven (2016), and the television series Buffalo Soldiers (1997). 23 Philip French, Westerns: Aspects of a Movie Genre (London: Secker & Warburg, in association with the British Film Institute, 1973), p. 94. It may also be important to note that Woody Strode’s voice-over narration which begins the 1993 film Posse also cites a similar percentage of African Americans among working cowboys in the nineteenth-century West. 24 In this book’s Introduction I invoked a metaphorical beloved-but-flawed relative, the racist Grandpa, as a stand-in for the Western genre, to hint at the progress of racial representations within the normative portrait of gunslinging justice that is operative within American popular culture and legal discourse. As an indication of the political correctness surrounding all things race in our current discourse, it seems important to note in passing here that at the time of this writing in 2017 this film is no longer distributed under its original title; it is instead marketed and sold—at least through Amazon.com—as The Legend of Black Charley. Similarly, Boss Nigger is now sold under the title Boss: AKA Black Bounty Hunter. 25 It may be worth noting here that Antoine Fuqua’s remake of The Magnificent Seven, although featuring Denzel Washington in the lead role, seems at great pains to avoid calling attention to Washington’s race. Indeed, the film opens with Washington astride a horse entering an overwhelmingly Anglo town in the nineteenth century just like the other films we have been discussing. In Fuqua and Washington’s rendition of it, however, we only see worried reaction shots from the townspeople. As race is never an explicit issue— Washington’s character is first greeted simply as ‘cowboy’ —the reaction shots register here more as worry over the sudden arrival of an unknown man, dressed all in black and armed quite heavily.



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26 Aisha Harris, ‘When Blaxploitation went West,’ Slate.com (Dec. 25, 2012). Available at www.slate.com/articles/arts/culturebox/2012/12/django_ unchained_tarantino_s_movie_seems_tame_compared_with_the_blaxploitation.html. Accessed July 9, 2017. In Glenda R. Caprio’s essay on the film, ‘I like the way you die, boy,’ Transition 112: The Magazine of Africa and the Diaspora (Bloomington: Indiana University Press, Nov. 2013), pp. 1–12, she also notes the significantly personal, individual nature of Django’s pursuit of vengeance. 27 In a much-cited television interview for Vibe magazine, Spike Lee adamantly refused to even see the film, calling it ‘disrespectful to my ancestors.’ An account of this interview, and the fallout from it, was written by Aisha Harris just before the film’s December 2012 release: ‘Conservatives freak out about Django Unchained,’ Slate.com (Dec. 19, 2012). Available at www. slate.com/blogs/browbeat/2012/12/19/django_unchained_and_racism_ drudge_report_rehashes_tarantino_n_word_flap.html. Accessed Apr. 10, 2015. Also, a special issue (112) of the peer-reviewed journal Transition: The Magazine of Africa and the Diaspora, entitled ‘Django unpacked,’ was published in November 2013 (Bloomington: Indiana University Press). Finally, it is worth noting that some of the hype around the movie was generated by conservative and far-right pundits who deemed the film’s revenge fantasy, and Jamie Foxx’s promotional appearance as host of Saturday Night Live during which he joked about killing whites and asserted that President Obama’s ‘blackness’ was incendiary, a threat to whites. See, for instance, Jeffrey Kuhner’s commentary, ‘Jamie Foxx and the rise of black bigotry: Age of Obama viewed as payback for slavery,’ Washington Times (Dec. 13, 2012). Available at www.washingtontimes.com/news/2012/dec/13/ jamie-foxx-and-the-rise-of-black-bigotry. See also Max Read’s reporting on conservative reaction to the film, ‘Why is the Drudge Report covered in ‘N*GGER’?: The coming right-wing freakout over Django Unchained,’ Gawker.com (Dec. 12, 2012). Available at http://gawker.com/5967848/ why-is-the-drudge-report-covered-in-ngger-the-coming-right-wing-freakout-over-django-unchained. 28 As a film ‘about’ slavery, however, the import of writing, literacy, and the power of legal language as performative utterance is not at all surprising, given the monumental importance of these themes within African American letters writ large, and very specifically within African American slave narratives. For an analysis of the interaction between these slave narratives and other contemporaneous discursive regimes with a pointed focus on the importance of literacy, see Dwight A. McBride’s Impossible Witnesses: Truth, Abolitionism, and Slave Testimony (New York: New York University Press, 2002). 29 Beyond the obviously self-aggrandizing Spike Lee ‘controversy’ over Tarantino’s language choice, or even the reaction among conservative

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pundits, it is notable here that in Henry Louis Gates, Jr’s three-part interview with Tarantino, first published in December 2012 on TheRoot.com and later reprinted as ‘Django unpacked,’ in Transition 112: The Magazine of Africa and the Diaspora (Bloomington: Indiana University Press, Nov. 2013), the whole of one of the three parts is strictly dedicated to the use of the ‘n-word’ in the film. Chris Vognar’s essay from the same journal issue, ‘He can’t say that, can he?,’ also deals with the film’s language. 30 Justin A. Joyce, ‘“Listen to the thunder”: Deadwood and the extraordinary depiction of ordinary violence,’ in Paul Stasi and Jennifer Greiman (eds), The Last Western: Deadwood and the End of American Empire (New York: Continuum, 2013), p. 116. 31 The 2016 remake of The Magnificent Seven is again relevant here, if only in passing. This film’s motivations for ‘justice,’ however, are more muddled. Both Denzel Washington’s character, Chisolm, and the character of Emma Cullen (Haley Bennett) occupy the role of ‘heroic avenger,’ as each seeks ‘justice’ for decidedly personal injuries suffered at the hands of the film’s villain. What differentiates their pursuits, if but slightly, is that Emma seeks vengeance and the return of ordered stability to her town, while Chisolm seems determined to help the town chiefly because it is with their help that he might exact the fullest revenge on his foe. 32 Despite all the play with ‘history’ in this film’s representation of slavery and the nineteenth century, Tarantino’s inclusion of slavers from Australia offers a fuller portrait of the global nature of the trade over several centuries than we usually get. It may be worth noting as well that in this more nuanced account of the interconnections fueling global capitalism during the nineteenth century, the film shares much in common with Deadwood’s portrayal of the global reach of finance capital in the figure of Hearst (Gerald McRaney) and his various middlemen of assorted descent and national origins. 33 Richard Dyer, White: Essays on Race and Culture (New York: Routledge, 1997), p. 1. 34 Kuhner, ‘Jamie Foxx and the rise of black bigotry.’ 35 John K. Roman, ‘Race, justifiable homicide, and Stand Your Ground laws: Analysis of FBI supplementary homicide report data,’ Urban Institute, July 2013. Available at www.urban.org/UploadedPDF/412873-stand-yourground.pdf. Accessed Aug. 8, 2017. 36 Terri Francis, ‘Looking sharp,’ Transition 112: The Magazine of Africa and the Diaspora (Bloomington: Indiana University Press, Nov. 2013), pp. 32–45; p. 34. 37 To be explicit, then, this is the primary reason I see Fuqua’s version of The Magnificent Seven as decidedly insufficient as a film in conversation with contemporaneous tensions. 38 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1975), p. 29. 39 French, Westerns, p. 47.

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Flaming Star, dir. Don Siegel, 1960 Go West, dir. Buster Keaton, 1925 The Godfather, dir. Francis Ford Coppola, 1972 The Great Northfield Minnesota Raid, dir. Philip Kaufman, 1972 The Great Train Robbery, dir. Edwin S. Porter, 1903 Grey’s Anatomy (television series), 2005— Gunfight at the O.K. Corral, dir. John Sturges, 1957 The Gunfighter, dir. Henry King, 1950 Gunsmoke (television series), 1955–1975 Halloween, dir. John Carpenter, 1978 Hang ’Em High, dir. Ted Post, 1968 Hannie Caulder, dir. Burt Kennedy, 1981 Harlem on the Prairie, dir. Sam Newfield, 1937 Harlem Rides the Range, dir. Richard C. Kahn, 1939 Hawaii Five-O (television series), 2010— Heaven’s Gate, dir. Michael Cimino, 1980 High Noon, dir. Fred Zinnemann, 1952 Hondo, dir. John Farrow, 1953 Hour of the Gun, dir. John Sturges, 1967 House M.D. (television series), 2004–2012 Hud, dir. Martin Ritt, 1963 100 Rifles, dir. Tom Gries, 1969 I Spit on Your Grave, dir. Meir Zarachi, 1978 Jeremiah Johnson, dir. Sydney Pollack, 1972 Jesse James, dir. Henry King, 1939 Joe Kidd, dir. John Sturges, 1972 Johnny Guitar, dir. Nicholas Ray, 1954 Judge Roy Bean (television series) 1955–1956 Justified (television series), 2010–2015 The Law and Jake Wade, dir. John Sturges, 1958 Lawman, dir. Michael Winner, 1971 The Legend of Nigger Charley, dir. Martin Goldman, 1972 The Life and Times of Judge Roy Bean, dir. John Huston, 1972 Little Big Man, dir. Arthur Penn, 1970 The Lone Ranger, dir. Gore Verbinski, 2013 The Lone Ranger (television series), 1949–1957 Lonely are the Brave, dir. David Miller, 1962 Lonesome Dove (television mini-series), 1989 Love Me Tender, dir. Robert D. Webb, 1956 The Magnificent Seven, dir. John Sturges, 1960 The Magnificent Seven, dir. Antoine Fuqua, 2016 Major Dundee, dir. Sam Peckinpah, 1965 Man and Boy, dir. E. W. Swackhamer, 1971

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The Man Who Shot Liberty Valance, dir. John Ford, 1962 McCabe and Mrs. Miller, dir. Robert Altman, 1971 McQ, dir. John Sturges, 1974 The Missouri Breaks, dir. Arthur Penn, 1976 My Darling Clementine, dir. John Ford, 1946 The Naked Spur, dir. Anthony Mann, 1953 No Country for Old Men, dir. Ethan and Joel Coen, 2007 Open Range, dir. Kevin Costner, 2003 The Outlaw, dir. Howard Hughes, 1943 The Outlaw Josey Wales, dir. Clint Eastwood, 1976 The Ox-Bow Incident, dir. William A. Wellman, 1943 Pat Garrett and Billy the Kid, dir. Sam Peckinpah, 1973 Posse, dir. Mario Van Peebles, 1993 The Professionals, dir. Richard Brooks, 1966 The Quick and the Dead, dir. Sam Raimi, 1995 Rambo: First Blood, dir. Ted Kotcheff, 1982 Rawhide (television series), 1959–1966 Red River, dir. Howard Hawks, 1948 Ride the High Country, dir. Sam Peckinpah, 1962 Ride Lonesome, dir. Budd Boetticher, 1959 The Rifleman (television series), 1958–1963 Rio Bravo, dir. Howard Hawks, 1959 The Searchers, dir. John Ford, 1956 Sergeant Rutledge, dir. John Ford, 1960 Seven Men from Now, dir. Budd Boetticher, 1956 Shane, dir. George Stevens, 1953 Sheriff Callie’s Wild West (television series), 2014— The Shield (television series), 2002–2008 The Shootist, dir. Don Siegel, 1976 The Soul of Nigger Charley, dir. Larry G. Spangler, 1973 Springfield Rifle, dir. André De Toth, 1952 Stagecoach, dir. John Ford, 1939 Support Your Local Gunfighter, dir. Burt Kennedy, 1971 Take a Hard Ride, dir. Antonio Margheriti, 1975 The Tall T, dir. Budd Boetticher, 1957 Taxi Driver, dir. Martin Scorsese, 1976 The Terminator, dir. James Cameron, 1984 The Texas Chainsaw Massacre, dir. Tobe Hooper, 1974 Thelma and Louise, dir. Ridley Scott, 1991 There Will Be Blood, dir. Paul Thomas Anderson, 2007 Thomasine and Bushrod, dir. Gordon Parks, Jr, 1974 The Three Burials of Melquiades Estrada, dir. Tommy Lee Jones, 2005 3:10 to Yuma, dir. James Mangold, 2007



Bibliography 

The Toll Gate, dir. Lambert Hillyer, 1920 Tombstone, dir. George P. Cosmatos, 1993 The Trooper of Troop K, dir. Harry A. Gant, 1916 True Grit, dir. Ethan and Joel Coen, 2010 Tumbleweeds, dir. King Baggot, 1925 Two Gun Man from Harlem, dir. Richard C. Kahn, 1938 Unforgiven, dir. Clint Eastwood, 1992 The Vanishing American, dir. George B. Seitz, 1925 Vera Cruz, dir. Robert Aldrich, 1954 The War Wagon, dir. Burt Kennedy, 1967 The West (television documentary), dir. Stephen Ives, 1996 The Westerner, dir. William Wyler, 1940 Westworld (television series), 2016— The Wild Bunch, dir. Sam Peckinpah, 1969 Wild Wild West, dir. Barry Sonnenfeld, 1999 Winchester ’73, dir. Anthony Mann, 1950 Wyatt Earp, dir. Lawrence Kasdan, 1994 Young Guns, dir. Christopher Cain, 1988 Cited legal cases Allen v. United States, 164 U.S. 492 (1896) Beard v. United States, 158 U.S. 550 (1895) Brown v. Board of Education, 347 U.S. 483–96 (1954) Brown v. United States, 256 U.S. 335 (1921) District of Columbia v. Heller, 554 U.S. 570 (2008) Engle v. Isaac 456 U.S. 107 (1982) Erwin v. State, 29 Ohio St. 186 (1876) Hankerson v. North Carolina 432 U.S. 233 (1977) Marbury v. Madison, 5 U.S. 137 (1803) McDonald v. Chicago, 561 U.S. 742 (2010) McElroy v. Holloway 451 U.S. 1028 (1981) Miranda v. Arizona, 384 U.S. 436 (1966) Moran v. Ohio, 469 U.S. 948 (1984) Mullaney v. Wilbur 421 U.S. 684 (1975) Patterson v. New York 432 U.S. 197 (1977) Presser v. Illinois, 116 U.S. 252 (1886) Runyan v. State, 57 Ind. 80 (1877) Slaughter-House Cases, 83 U.S. 36 (1873) State of New Jersey v. Gartland, 149 N.J. 456 (1997) State v. Gardner. Minn., 104 N.W. 971 (1905) United States v. Cruikshank Et Al., 92 U.S. 542 (1875) United States v. Miller, 307 U.S. 174 (1939)

241

Index

100 Rifles 224n.22 3:10 to Yuma 90 Abel, Charles 178, 180, 184–5, 189 Adams, Rachel 167n.22 Adventures of Buffalo Bill 101–5, 107, 126n.33 African Americans 20–2, 74–5, 116, 123, 157–8, 170n.49, 174, 182, 187–8, 202, 207–11, 215, 218–21, 224n.22, 225n.28, 226 Agamben, Giorgio 12 Aladjem, Terry K. 30–1, 33, 179 Aleiss, Angela 20 Alexander, Marissa 3, 198 All the Pretty Horses 90 Allen v. U.S. 67n.35 Allmendinger, Blake 20 American Rifleman 133 Anderson, Benedict 17 Angle and the Badman, The 118 Anglo Americans 2, 10, 18–23, 25, 42, 48, 55, 77, 93, 98, 100, 104–6, 114–15, 123–4, 132, 135–40, 142, 146–8, 150, 152, 157, 159, 161, 172–3, 182, 190, 192, 194n.30, 197, 199, 202–4, 207, 209, 214, 218, 220 Asian Americans 20, 22 Assassination of Jesse James by the Coward Robert Ford, The 90

Bacon, Francis 32, 64n.4 Bad Day at Black Rock 13, 92 Bad Girls 90, 123 Bailyn, Bernard 85n.5 Baldick, Robert 64n.4 Ballad of Little Jo, The 90, 123 Barton, Charles K. B. 33 Basso, Matthew 21 Beale, Joseph H. 58–9, 63 Bean, Phantly Roy Jr. 28 Beard v. U.S. 56–7, 66n.20 Bellah, James Warner 152, 170n.49 Bellesiles, Michael 64n.5 Berlin, Isaiah 167n.21 Beirstadt, Albert 95, 125n.5 biopower 11, 109, 137, 139–41, 168n.33, 216 Birkenstein, Kathy 1 Birth of a Nation 217 Bishop, Joel Prentiss 52 Blackstone, William 52, 55, 66n.19, 83, 88n.30 Blaxploitation 182, 208, 210–11, 214, 218, 221 Blazing Saddles 28, 182, 209–11, 224n.22 Blood Meridian 89 Bloomfield, Maxwell H. 45n.31 Blue Blazes Rawden 110 Boetticher, Budd 35, 45n.24



Index 

Bonney, William aka Billy the Kid 9, 103–5, 126n.27, 133 Boss Nigger 208, 210–11, 224n.22, 224n.24 bounty hunting 183, 185–6, 211–12, 214–16 Bowers, Fredson 44n.15 Brand, Max 15 Brannigan 182 Brave One, The 192 Brennan, William J. Jr. 175 Brokeback Mountain 14 Bronze Buckaroo, The 224n.22 Brooks, Mel 209 Brothers in Arms 224n.22 Brown v. Board of Education 181, 189 Brown v. U.S. 59–61, 74, 78, 111 Brown, Mike 198 Brown, Richard Maxwell 50, 193n.7 Brown, Wendy 86n.10 Buchanan Rides Alone 45n.24 Buck and the Preacher 123, 224n.22 Buffalo Bill and the Indians 122 Buffalo Soldiers 224n.22 Burbick, Joan 72, 128 Burns, Ken 90 Bury my Heart at Wounded Knee 90 Buscombe, Edward 67n.25, 183, 223n.3 Butler, Judith 169n.33 Campbell, Neil 14, 196, 221 Canuel, Mark 139 capitalism 30, 69, 126n.43, 174, 185, 212–15, 226n.32 Caprio, Glenda R. 225n.26 Cardozo, Benjamin 45n.31 Carter, Matthew 41–2, 90–1, 106, 144, 150, 173 castle doctrine 53, 55–7, 66n.19, 124–6, 193n.11, 206 Cat Ballou 182 Cawelti, John G. 37–8, 40, 151 Charro 133 Chemerinsky, Erwin 65n.6 Cheyenne Autumn 123 Chicago P.D. 223n.13 Clover, Carol 166n.17

243

Cody, William F. aka Buffalo Bill 101–5, 107, 126n.33 Cohan, Steven 166n.17 Cole, Thomas 95 Comanche Station 45n.24 Comancheros, The 115–16 commerce 9, 30 commodity 29, 111, 135, 212, 215, 220 Connell, R. W. 167n.22 Cooper, Gary 116, 120, 133, 162, 202 Cooper, James Fenimore 42, 89, 92–4, 97, 100–1, 104, 108, 203 Last of the Mohicans, The 95–99, 105, 114, 126n.33, 148 Coppola, Francis Ford 183 Costner, Kevin 89 Cover, Robert M. 13 Cowboys and Aliens 90 Cramer, Clayton E. 65n.5 Crawford, Joan 146–7 Crimson Skull, The 224n.22 Cruikshank, Barbara 13, 137–8, 167n.21 CSI 214 Cutting Horse 224 n.22 D.C. v. Heller 3–5, 7, 71, 73, 76, 81–3, 86n.12, 88n.37, 89, 199, 202, 205–7 d’Entreves, A.P. 126n.45 Daley, Richard M. 7–8 Dances with Wolves 89 De Lauretis, Teresa 13 De Wilde Brandon 130–1 Dead Man 80–1, 90, 123 Deadwood 9, 90, 200, 213, 226n.32 Death and the Maiden 34 Death Wish 170n.45, 182, 193n.7 Decision at Sundown 45n.24 defense see self-defense Deliverance 170n.45 Denvir, John 45n.31 Destry Rides Again 147 dime novel 9, 42, 50, 93, 100–1, 103–4, 109–110, 191 Dirty Harry 170n.45, 182, 193n.7

244

Index

discipline 11, 13, 37–8, 40, 93–4, 100, 104–5, 109, 124, 133, 136–8, 140–55 passim, 161–2, 168, 173, 180, 191, 217 Django Unchained 5, 9, 11, 198, 208–21 passim Donahue, James J. 20 Douglas, Lawrence 7, 39, 45n.31 Down in the Valley 13, 90–2 Dr. Quinn, Medicine Woman 90 Drums Along the Mohawk 92 due process 11, 21, 67n.36, 152, 174–5, 177, 181, 189–90, 192, 203, 223n.13 Dunn, Michael 4, 22 Dyer, Richard 19, 115 Earp, Wyatt 39–40, 120, 133 Eastwood, Clint 11, 36, 89, 124, 173–4, 179, 182–3, 187, 191–2 El Dorado 163 Engle v. Isaac 68n.36 English common law 4, 11, 22, 51–7, 60–1, 66n.19, 101, 143 ER 214 Erwin v. State 53–7, 60, 65n.12, 103, 143, 177 Ewald, François 141–2 Fausto-Sterling, Anne 169n.33 Federalist, The 85n.8 Fish, Stanley 23, 31, 38, 62 Fisher, Frances 184 Fisher, Philip 89, 93, 99–100 Flaming Star 133 Fonda, Henry 39, 120, 162 Ford, John 17, 50, 92, 115, 151, 161, 170n.49, 182 Foster, Gwendolyn Audrey 20, 207 Foucault, Michel 11–12, 39, 109, 137, 139–42, 168n.28, 168n.29, 168n.33 Fourteenth Amendment 67n.36, 75, 175, 181 Foxx, Jamie 208, 217, 219–20, 225n.27 Francis, Terri 221 Freeman, Morgan 183, 187–8

French, Peter A. 33 French, Philip 14, 16, 40, 150, 222 frontier 8, 14–15, 17, 20–1, 39–40, 51, 67n.25, 69, 92–5, 100, 107, 109, 116, 128, 156, 159, 180, 182, 189, 203, 208, 216 Gallagher, Tag 16, 40–1, 150, 173 Garceau, Dee 21 Gardiner, Judith K. 167n.22 Garner, James 39 Garrett, Pat 103–5, 125n.27 Gatling, Richard 69, 84n.1 Geertz, Clifford 38 Giffords, Gabrielle 84 Girard, René 43n.2 Go West 109 Godfather, The 170n.45 Goetz, Bernhard 193n.7 Goldbeck, Willis 152, 170n.49 Graff, Gerald 1 Great Northfield Minnesota Raid, The 122 Great Train Robbery, The 109, 204 Greeley, Horace 55, 109 Grey, Zane 15, 148 Gunfight at the O.K. Corral 39 Gunfighter, The 9, 91, 120, 171n.60 Gunning, Tom 18 Hackman, Gene 183, 188 Hall, Kermit L. 86n.11 Halloween 170n.45 hanging 9, 28, 66n.20, 106–7 Hankerson v. North Carolina 68n.36 Hannie Caulder 192 Harlem on the Prairie 224n.22 Harlem Rides the Range 224n.22 Harper, Phillip Brian 168n.22 Harris, Aisha 211 hats (black v. white) 110, 118, 144, 199, 202–3, 205 Hawaii Five-O 223n.13 Hawks, Howard 118 Hickok, James B. aka ‘Wild Bill” Hickok 48–51



Index 

High Noon 9, 116–17, 190, 196 Hispanic Americans 20 Hobbes, Thomas 38, 46n.32 Holmes, Oliver W. 38, 46n.33, 60–1, 74, 78, 86n.11, 111, 175 home 3, 7, 55–7, 66n.19, 82, 148–9, 174–7, 190, 194n.11, 205–7, 214, 220 Hondo 163 Hour of the Gun 39, 118 Howard, Ron 162–5 Hud 13, 92, 120 Hunt, Alan 142 Huston, John 28 I Spit on Your Grave 170n.45, 182, 192 Ingraham, Prentiss 101 Jackson, Andrew 98, 126n.30 Jacoby, Susan 32, 179 James, Jesse 9, 133 Jeffords, Susan 166n.17, 167n.22 Jeremiah Johnson 116 Jesse James 8, 118 Joe Kidd 116 Johnny Guitar 146–7 Johnson, Dorothy 152, 170n.49 Jolly, Roslyn 181, 184 Jones, Daryl 101 Judge Roy Bean 43n.1 judicial review 51, 54, 65n.6 jurisprudence 4, 10, 22, 43, 51–5, 57, 61–3, 66n.19, 67n.35, 72–6, 86n.11, 89, 91, 106, 150–1, 164, 175, 177–8, 190, 193n.7, 207, 220 Justified 11, 13, 90, 124, 198–208, 214 Kamir, Orit 6, 34–5 Kant, Immanuel 46n.32, 178 Keaton, Buster 109 Keith, LeeAnna 87n.14 Kimmel, Michael 167n.22 Kinder, Marsha 19 King, Henry 8, 91 King, Rodney 188 Kitses, Jim 35, 154, 181

245

Kopel, David B. 66, 68n.39 Kuhner, Jeffrey 219, 225n.27 Ladd, Alan 120, 129–30, 199 Lane, Charles 86n.13 Laqueur, Thomas 169n.33 Lawman 118 Layton, Frank 79 Lee, Spike 225n.27, 225n.29 Legend of Nigger Charley, The 208, 210–11, 224n.22 Lehman, Peter 166n.17 Leonard, Elmore 204 Leone, Sergio 17 Levine, Anna 184 Levinson, Sanford 86n.10 Levmore, Saul 24 Life and Times of Judge Roy Bean, The 28–31, 139 Limerick, Patricia N. 20, 41, 66n.17 Little Big Man 123, 182 Little, Cleavon 209–10 Locke, John 46n.32, 70, 111 Lonely are the Brave 120 Lonesone Dove 89–90 Love Me Tender 133 Lusted, David 35, 45n.24 Madison, James 85n.8 Magnificent Seven, The (1960) 57 Magnificent Seven, The (2016) 224n.22, 224n.25, 226n.31, 226n.37 Major Dundee 224n.22 Malcolm, Joyce L. 84n.2, 85n.4 Man and Boy 224n.22 Man Who Shot Liberty Valance, The 3, 120, 151–61, 169n.43, 182 Mann, Anthony 91, 111 Marbury v. Madison 51, 65n.6 Martin, Trayvon 3, 21, 198 Marvin, Lee 152–3, 156–7, 169n.43 Marx, Leo 65n.17 masculinity 11, 18–27 passim, 37, 48, 81, 97, 105–8, 120, 124, 128, 132–65 passim, 167n.22, 175, 177, 192

246

Index

Matz, Howard 24 Maus, Katherine E. 33–5, 37 McBride, Dwight A. 169n.32, 225n.28 McCabe and Mrs. Miller 123, 182 McCall, Laura 21 McCambridge, Mercedes 146 McCarthy, Cormac 89–90 McDonald v. Chicago 5, 86n.12 McElroy v. Holloway 68n.36 McGee, Patrick 14, 41, 170n.51 McIlvaine, George W. 53, 143 McMahon, Jennifer 24 McMurtry, Larry 89 McNally, Stephen 111, 113 McQ 182 McShane, Ian 9 Mexicans 20, 115, 121, 148, 158, 211 Michaels, Walter B. 126n.43 Miles, Vera 159–60 militia 4–5, 7, 69–82 passim, 85n.8, 87n.26, 220 Miller, William I. 32, 34–5, 37, 43n.6, 190 Miranda v. Arizona 182, 198 Missouri Breaks, The 122 Mitchell, Lee C. 17, 50, 125n.5, 136–7 Mix, Tom 109–10, 133 monarchy 12, 52, 55, 69–73, 76, 85, 99, 139 Moran v. Ohio 175–6 Morrison, Toni 5 Mullaney v. Wilbur 67n.36 Mulvey, Laura 166n.17 My Darling Clementine 39, 118, 120 Naked Spur, The 35 Native Americans 20, 69, 81, 94, 96–105 passim, 114–16, 126 n.33, 148, 194n. 30, 203, 211 Neale, Steve 166n.17 Nedelsky, Jennifer 174 Nelson, Andrew P. 14, 197 Neroni, Hillary 19 Newman, Paul 28–9 Niblack, William E. 54 Nichols, George W. 48, 50 No Country for Old Men 14, 92

Nolan, Frederick 126n.27 Nussbaum, Martha 24 Obama, Barack 5, 215, 219, 225n.27 Olyphant, Timothy 198–200, 204 Open Range 90 outlaw 9, 28, 93, 100, 103–4, 109–10, 114, 118–19, 122, 133, 190, 195, 208 Outlaw Josey Wales, The 118 Outlaw, The 118 Ox-Bow Incident, The 9 Palance, Jack 118, 130 Parker, Isaac C. 66n.20 Pat Garrett and Billy the Kid 28, 120, 182 Patterson v. New York 68n.30 Patterson, Orlando 167n.21 Peckinpah, Sam 42, 121n.21, 127, 182 Penn, Arthur 182 Peoples, David W. 183 Petch, Simon 36, 181, 184, 195n.31 Pippin, Robert 14–15, 157, 196 populism 29–30, 43n.3, 57, 67 Posner, Richard A. 43n.31 Posse 89, 123, 214, 224n.22, 224n.23 Presser v. Illinois 73, 77–79, 81 Prince, Stephen 170n.50 Production Code 150, 170n.50 Professionals, The 224n.22 property 29, 43, 53, 55–7, 70, 78, 104, 106, 138, 147, 159, 172–5, 184–5, 188, 208–9, 222 Prosser, Eleanor 33–5, 37, 44n.15 prostitution 174, 183–5, 190, 194n.30, 213 Pumphrey, Martin 136–7 Quick and the Dead, The 89 Rawls, John 178 Ray, Nicholas 146, 169n.44 Red River 163 Remington, Frederic 96 retreat 4, 10, 22, 48–74 passim, 88n.30, 98, 101, 138, 141, 151, 175–7, 215–20 passim



Index 

revenge 5, 10, 28–40 passim, 44n.15, 116, 170n.45, 170n.49, 179–92 passim, 211–12, 214, 218, 226n.31 Ride Lonesome 45n.24 Ride the High Country 120 Riders of the Purple Sage 148 Rifleman, The 116 Rio Bravo 9, 118, 163 Robinson, Sally 167n.22 Rogers, Roy 133–5, 166n.10 Rollins, Peter C. 20 Roman, John K. 221 Rosenberg, Bruce A. 63n.4 Rotundo, E. Anthony 167n.22 Runyan v. State 53–7, 60, 65n.13, 103, 143 Ryan, Cheyney 170n.51 Sarat, Austin 7, 39, 45n.31 Savran, David 167n.22 Scalia, Antonin 82–3, 87n.28, 88n.30, 202 Schaller, Barry A. 45n.31 Scott, Pippa 148–9 Scott, Randolph 35, 45n.24, 120, 161 Searchers, The 148–9, 203, Second Amendment 3–5, 7, 64n.5, 71–88 passim, 94, 164, 198, 202, 220 Sedgwick, Eve K. 168n.22 Segal, Lynne 168n.22 self-defense 3–7, 9–12, 22–3, 40, 43, 48, 51–63, 66n.19, 67n.35–6, 68n.38, 69–94 passim, 101, 103–4, 107, 111, 116, 124, 136–56 passim, 160–1, 173–8, 189–90, 193n.7, 193n.11, 198–207 passim, 214–22 passim Sementelli, Arthur 178, 180, 184–5, 189 Sergeant Rutledge 170n.49, 224n.22 Seven Men From Now 45n.24 Shane 9, 24, 57, 118, 120, 129–32, 144–5, 199 Sheerin, Brian 44n.15 Sheriff Callie’s Wild West 165n.9 Shield, The 204 shootout 9, 17, 48, 63n.4, 66n.24, 92–3, 108, 116–17, 130, 143–5, 147, 152, 155–7, 160–1

247

Shootist, The 120, 162–5, 171n.60, 182 Siegel, Don 162–3, 182 Silverman, Kaja 166n.17 Simkin, Stevie 44n.23 Simpson, OJ 188 Slaughter-House cases 75–6 slavery 2, 157, 210–20, 225n.28, 226n.32 Slotkin, Richard 18, 41, 43n.3, 63n.4, 66n.17, 72, 85n.6, 123, 127n.48, 203 Smith, Carl S. 45n.31 Smith, Carlton 41 Smith, Henry N. 65n.17 Soul of Nigger Charley, The 211, 224n.22 sovereignty 11–13, 46n.32, 71, 73–4, 100, 141, 178, 195n.31, 215–16, 222 Springfield Rifle 116 Stagecoach 35, 115 ‘Stand Your Ground’ laws 4, 22, 51, 66n.19, 198, 215–16, 221 State v. Gardner 58, 62 State v. Gartland 176–7 Steckmesser Kent L. 63n.4 Stegner, Wallace 24 Stevens, John P. 82–3 Steward, Dick 64n.4 Stewart, James 111–12, 120, 152–3, 155–6, 162, 169n.43 Strode, Woody 157–8, 170n.49, 224n.23 Suk, Jeannie 68n.38, 176, 193n.11 Supreme Court, US 3–4, 7, 10, 51, 56, 58–61, 65n.6, 66n.20, 67n.35, 72–83 passim, 88n.37, 175, 205 Swarthout, Glendon 171n.60 Swarthout, Miles 171n.60 Take a Hard Ride 224n.22 Tall T, The 45n.24 Tarantino, Quentin 5, 198, 208, 211, 214, 217, 221, 226n.32 Tasker, Yvonne 166n.17 Taxi Driver 170n.45 ‘technology of citizenship’ 13, 137–8, 143, 164 Texas Chainsaw Massacre, The 182 Thelma and Louise 192

248

Index

There Will Be Blood 14 Thomasine and Bushrod 224n.22 Three Burials of Melquiades Estrada, The 14 Toll Gate, The 110 Tombstone 39–40, 89, 202 Tompkins, Jane 41, 105–6, 132, 136–7, 187 Trooper of Troop K, The 224n.22 True Grit 90 Tumbleweeds 110–11 Turner, Frederick J. 17, 20 Tushnet, Mark 72, 171n.56 Tuska, Jon 21 Two Gun Man From Harlem 224n.22 U.S. v. Cruikshank 20, 73–7, 79, 81 U.S. v. Miller 73, 79–82, 84, 87n.26, 164 Umphrey, Martha M. 7, 39 Unforgiven 9, 11, 89, 124, 172–4, 178–9, 183–92, 194n.30 Vanishing American, The 127n.49 Vera Cruz 116, 127n.49 Virginian, The (1902) 9, 106–8, 117, 123, 136, 143 Vognar, Chris 226n.29 Walker, Janet 20 Waltz, Christopher 208, 217

War Wagon, The 127n.49 Warner, Michael 169n.33 Warshow, Robert 40, 92, 137 Wayne, John 8, 17, 118–20, 133, 144, 152, 155, 157, 161–4, 169n.43, 171n.54, 172, 182, 203 Westerner, The 28 Westworld 14, 90 Wexman, Virginia Wright 17, 137, 144, 171n.54, 171n.55, 172 White, James B. 45n.31 Wickham, Gary 142 Wild Bunch, The 9, 121–2, 127n.49, 182 Wild Wild West 90 Williams, David C. 85n.7 Williams, Patricia 13, 172 Williamson, Fred ‘The Hammer’ 210–11, 214 Wister, Owen 9, 106–8, 123, 136, 143 Wittgenstein, Ludwig 181 Wright, Will 35, 37, 40, 66n.17 Wyatt Earp 39–40, 89 Wyatt Earp: Frontier Marshal 39 Wyler, William 28 Young Guns 90, 123 Zea, Natalie 206 Zimmerman, George 3, 5, 22