The United States Constitution is the very fabric of our law and our lives. It should not be lightly modified. If we make a case for the changing effect of time and culture, we open a can of worms that may be hard to close.
The Second Amendment to the Constitution, written and polished by noble and fervent Americans living at a time when a new nation was coming into being, took measures to protect the rights of Americans to “keep and bear” arms. Courts subsequently ruled that the Second Amendment protected Americans’ right to possess firearms unconnected to a militia, although the need for a standing and present militia was then a real necessity, and the matter was discussed at length.
Some reports of these long-past events suggest that care was taken to avoid the unpleasantness of a “right of citizens to own arms provision” which might be used to provide armaments to those who would overrule a government, in a situation wherein that government no longer had the trust and support of the majority of people.
The Second Amendment was adopted on December 15, 1791, along with the rest of the Bill of Rights. Again, that’s December. Of 1791.
We may take a moment to call to mind what life in these United States was like in that early time. While civilization was booming in the east, life in the interior and farther west was far from civil. As Americans in covered wagons sought to make homesteads, farms, areas to breed cattle, they encountered Indians native to the region. The history of the defeat of the Indians is a tragic page in American history. The early settlers had to deal as individuals with bad men and rustlers. Gun-wielding bloodthirsty thieves, lawless criminals ran unchecked, out to take everything available for themselves. These lawless riders of the plains were often vicious; they worked in union with others of that ilk. When settlements turned to towns, and later, towns turned to small cities, there was little or no law. Some brave men rose up to protect the community; in some areas sheriffs were elected. Still we can imagine the plight of a man with a wife and children in those trying times.
One early sheriff and fighter for the people was the famed Wyatt Earp, believed to have been born on March 19, 1848. Earp worked for the law and helped to tame the west. He is remembered for a famous historical gunfight at the OK corral in Tombstone, Arizona. Earp’s birth was nearly 60 years after the passage of the Bill of Rights.
William H. Bonney, “Billy the Kid” started a life of crime with theft and horse robbery. He killed a man at the age of 18. He was a gunslinger known for his wanton violence. Billy is thought to have been born on November 23, 1859. That was 70 years after the Constitution was written as the law of the land.
Son of a preacher, John Wesley Harding was possibly the most bloodthirsty of the infamous in the Old West. He killed at least 42 people, including former slaves and gunfighters. He was known for carrying two pistols in holsters strapped to his chest, which enabled a faster draw. He was arrested at the age of 17, but was able to get a gun, kill a guard, and escape. John Wesley Harding was born in Bonham, Fannin County, Texas, on 26th May, 1853.
The old west is gone, and a militia has been replaced with a vast and well armed military. People don’t ride in covered wagons, and they are in most cases well protected. In the United States, major cities daily are forced to defend the force of the special interest groups who openly profit from gun sales. Children are shot. Young people anticipate a short and violent lifetime.
Can you imagine a drug-ridden US city, forced to accept the rights of individuals to carry hidden weapons? No self respecting gang member would go weaponless. Concealed arms would be the rule of the day, and gangbangers with guns, like children with toys, wouldn’t rest until they had heard the explosion and felt the recoil of the respect-granting weapon.
Today’s world is nothing like the time of our founding fathers, and they had no hope to envision the future, just as we today have no hope of previewing the world down the road. So it doesn’t make sense to continue gun laws that are clearly obsolete, and counterproductive. We hope that today’s awful violence in unique situations, and in every US city, will bring light to this night, and that sensible laws which don’t conform to the early constitution will be the rule of the day.
The purpose and intent of the 2nd was to provide for the overthrow of government in the case of tyranny.
For the early founding fathers, that specifically meant having weaponry accessible to citizens. Here’s Hamilton in Federalist 29:
This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.
Notice the word “arming” in there. But Hamilton also viewed the 2nd amendment as a collective right. Some early laws were also based on the idea of arming the populace as part of a collective right. The 1792 Act of Militia is a good example of what I’m talking about.
That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service,
So, the founders viewed armament a lot more similarly to how the Swiss view it today: an individual responsibility as part of a collective right.
So what changed? In a lot of ways, the Civil War changed things. The NRA was actually formed after the Civil War. The Civil War, and the 14th Amendment, was actually what sort of gave rise to the view of the Bill of Rights as being individual rights rather than collective ones. As Akhil Reed Amar, a con law professor at Yale, explains here:
The NRA is founded after the Civil War by a group of ex-Union Army officers. Now the motto goes, when guns are outlawed, only klansmen will have guns. Individual black men had to have guns in their homes because they couldn’t count on the local constabulary. It’s in the text of the Freedman’s Bureau Act of 1866 that we actually see the reinterpretation of the original Second Amendment. It becomes about original rights.
So, to take things back a ways. Originally, the Second Amendment was viewed much more as a collective right. The important thing was that individuals be armed as part of a group responsibility. In other words, you needed to have a gun in case you were needed to help overthrow a tyrannical government.
After the Civil War, the whole discussion about collective versus individual rights changed, and having a gun became much more about self defense. This was in direct response to the newly Reconstructed South.
Your individual state could regulate your guns, but the feds couldn’t. Projecting the phrase “gun rights” back in time is really problematic, pretty much for this reason. It was somewhat common in the south for it to be illegal for Black men to own guns–even free Blacks. To a much lesser extent, the same was true for women. It wasn’t so much that you had “gun rights” so much at all, since there was no thought that taking guns away from Blacks was in any way threatening the gun ownership of Whites.
Here’s a list of laws/proposals relating to guns, militias and armies from the English Bill of Rights to the 2nd Amendment. I thought the progression in the wording was interesting.
English Bill of Rights (1689)
- That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law
- That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law
Virginia Declaration of Rights (May 1776)
- Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
Massachusetts Constitution (1780)
- XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
Gun related requests from States to Congress for Original Amendments:
- No request
- That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
- That the militia should not be subject to martial law, except in time of war, rebellion, or insurrection.
- That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power.
- 17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.
James Madison’s original version of the 2nd Amendment
- The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
Final version of the 2nd amendment
- 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.
I found the progression interesting. My favorite parts were:
- The founders started from a position before the revolution of statements like ‘armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature’ but by the late 1780s that language is missing.
- The 2nd amendment originally had the clause ‘but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person’ but it was removed.
- The original wording of the 2nd amendment started ‘The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country’ – They reversed it but I have no idea why. It seems the original was stronger though it is impossible to know their intent unless their discussions were written down.
It’s important to understand the the Founding Fathers were a bunch of different people with different opinions (see James Madison’s notes on the Constitutional Convention for lots of fun debates with the Founding Fathers)
- In an 18th-century context, it was about having citizen militias as opposed to standing armies.
- It’s really important to recognize that the notion of a standing army was a massive bugbear for 18th-century liberalist positions, and as many of the colonists had migrated to the new world to escape such European conditions as the New Model Army in the middle decades of the 17th century, or James II’s standing army in the 1680s, the idea was to not let that kind of shit happen anymore.
- It’s the same idea that drives the amendment about having to quarter troops: that a standing army is a threat to a democratic government and the freedoms of the people who comprise it.
[All common law countries with written constitutions have two primary sources of constitutional law: the text itself and judicial interpretation of the text (jurisprudence). And since the text itself is very hard to change (in the US it requires agreement from 75% of the states), most changes in constitutional law come from evolution of the jurisprudence.
In the US, the 2nd amendment is old and poorly worded and the states are in disagreement, so it falls to the courts to interpret (set?) the law.
Now there are lots of philosophies on constitutional interpretation, but some key members of the Supreme court are enamored with original-ism (cough Scalia cough), which is the thought that the constitution should be interpreted according to the intent of the drafters.
Now lots of people think this is ridiculous because the drafters had no concept of iron birds or assault rifles or countless other factors that are extremely relevant to the discussion. I tend to agree but original-ism has its philosophical benefits: it puts the onus of constitutional developments on elected bodies and it has a certain rigidity to it that some people like (flexible law is no law at all as they say).
But as long the states cannot agree on a redraft or the USSC still clings to original-ism, then the intent of the founders will continue to matter.]
- Originally, the Second Amendment was viewed much more as a collective right. The important thing was that individuals be armed as part of a group responsibility. IOW, you needed to have a gun in case you were needed to help overthrow a tyrannical government.
- After the Civil War, the whole discussion about collective versus individual rights changed, and having a gun became much more about self defense. This was in direct response to the newly Reconstructed South.
- For those men who were allowed to own guns, the Founders had their own version of the “individual mandate” that has proved so controversial in President Obama’s health-care-reform law: they required the purchase of guns. A 1792 federal law mandated every eligible man to purchase a military-style gun and ammunition for his service in the citizen militia. Such men had to report for frequent musters—where their guns would be inspected and, yes, registered on public rolls.
[As a note, even if one takes the position that it is the collective right for the militia rather than the individual right, Section 313 Title 32 states that every man 17-64 is a part of the unorganized militia.]
- Now, gun-rights activists seem to be arguing that restrictive gun laws passed by Hitler were the impetus to his rise. That’s completely baseless as the Weapons Act was passed five years after Hitler’s ascension to power. Moreover, Hitler’s repressive tactics decimated the liberal ranks of Germany’s political system before the Weapons Act.
- In the US, a lot of the first gun restrictions got passed in the post-reconstruction south explicitly to disarm blacks as part of the establishment of Jim Crow.
- Loaded open carry was specifically banned in California after the Black Panthers marched on the state capitol building in 1968. They couldn’t charge them with anything so it was made illegal the next day.
- There weren’t really gun control laws as we know them during the 18th century, and especially in New England, lots of folks served in the colonial militias. I imagine gun ownership became more common the further away from the big cities you went, both for making a living and because American settlers were terrified of Native American raids.
- As for JFK, his assassination was added to assassinations of MLK, Malcom X, and RFK and was part of the impetus for the Gun Control Act of 1968, which, among other things, effectively banned direct mail order of firearms to non-licensed persons, which is how Oswald got his rifle.
What is it with 18th century punctuation and grammar?
Punctuation and spelling were a little looser then, and more importantly, some words in the 18th century do NOT mean what we think they mean today. People who posit that any historical document (whether something as well known as the Constitution to a simple piece of correspondence) is absolutely transparent to the modern reader needs to check their ego at the door. During my career as a historian I have made numerous errors of interpretation — and I am sure I am not done making them — because I misconstrued the use of a phrase or was unaware of how a phrase at a particular time was loaded with specific political, religious, or social meaning. Consider the history of words like terrific orenthusiast, or how certain terms like “gold” and “silver” came to take on special political meanings in the 19th century the same way that “life” and “choice” are — pardon the pun — pregnant with meaning today.
The truth is there may not have been universal agreement on the punctuation (or even the actual meaning) of all of the Constitution, much less its later amendments. Consider how both the Federalists and Antifederalists made counter charges as to what the Constitution would actually mean for a new America. Even the Federalist papers themselves are an interesting case in point — these documents, which have been cited over three hundred time sin court cases to explain what the constitution “actually meant,” were at their heart propaganda pieces to sell the Constitution on ratification. This does not mean that the Federalist papers are flim-flam, but some caution must be used: Sometimes the Federalist paper argue a very populist notion of the rights of the people (and mind you, this is before a bill of rights is on the table, at first), even though the top three types of positions in the new government (President, Senators, and Supreme Court Justices) would not be directly elected by the people.
A Hamiltonian view of what the Constitution meant, what it SHOULD have contained, and what it allowed is vastly different form what others such as Jefferson interpreted, and indeed formed a crux of the political discussion of the early republic.
So — and this is a roundabout way of getting back to the grammar discussion — yes, there is more than one way to legitimately parse the Second Amendment. But the best answer for what does it mean to have a “militia” or what kinds of rights does the second amendment refer to in reference to “arms”, grammar is probably not our most utilitarian friend. I discussed in the most recent second amendment thread the problem with the definition of militia. The majority opinion written by the conservative wing of the modern court in Heller, relied upon a definition of militia that chooses to both very broadly accept certain historical evidence (who are the people who make up the militia) but very narrowly construe the historical existence of the militia as being under control of the state governments. (One historical counterargument to Heller’s interpretation is that the militia as defined in Section I does indeed already exist, but were well-regulated meaning STATE CONTROLLED by the governor, which had been the case during the entire colonial period.)
The point is that grammar alone does not get us to “what does the second amendment really mean?” Heller is simply the most modern example of the court looking at historical and legal evidence and choosing to accept some types of evidence and discard others, which ultimately all rational people have to do when weighing teh evidence of what “the founders” meant. the problem is there is no one universal founder who agreed upon all things or set a specific set of definitions.
One last side note on historical grammar and punctuation and amendments: This problem with Amendments having various punctuation (or spellings) is not confined to this time period. There is a small bevvy of lunatic right-wing antitax zealots who have argued that the 16th Amendment was never properly ratified. Their argument boils down to that when the states sent back their ratification notices, some states had different capitalization, or a punctuation mark, or in one case a word that was plural was written in the singular, and that therefore they never really “ratified” the amendment. To no one’s surprise, these arguments have been dismissed by the courts, and now with some prejudice, as the claims have been labeled not only false but fraudulent by courts.