For the past six weeks I have heard even the most passionate advocates for gun control legislation qualify their remarks by saying, “I respect the 2nd Amendment and the right of every citizen to own guns...” I am deeply disturbed by this concession because it relinquishes 50 yards of playing field even before the debate has begun. And the NRA and the gun manufacturers are absolutely ecstatic that the majority of Americans are passively and unknowingly doing their rhetorical work for them. Well, I’m not okay with that, so here is my attempt to introduce a few historical facts into the gun debate, and re-adjust our understanding of the 2nd Amendment.
I respect the 2nd Amendment, but it ain’t got nothing to do with an individual’s right to bear arms.
Our nation has a bad case of amnesia about our history of gun regulation legislation. And the media should be doing a much better job of bringing that historical perspective to the current debate. For most of our nation's history, there has been near unanimous consensus that the 2nd Amendment does NOT confer an individual right to own or carry a firearm. That’s right. Until very recently, that has been the overwhelming consensus among Americans and in the courts. Ever since the aftermath of the War of 1812 (when veterans returned home from war with their firearms) the federal government has regulated and restricted the right to bear arms, and did so without political controversy. One of the first major Supreme Court 2nd Amendment cases was Presser v. Illinois in 1886. In Presser, the Court found that although there may be certain limitations on the powers of Congress regarding the 2nd Amendment, those limitations do not apply to the states, which are free to regulate the sale and ownership of guns as they see fit.
In US v Miller in 1936, the U.S. Supreme Court ruled on a case involving the National Firearms Act, (which was passed after the St. Valentine's Day Massacre). In that case, the Court ruled UNANIMOUSLY that the 2nd Amendment pertains to militias and not to individual rights.
The Supreme Court held that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that “because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.”
For nearly 80 years, the doctrine established by US v. Miller; the 2nd Amendment as a “collective right” and not an individual right, has been considered “established law” and the controlling precedent by the Court. This doctrine has been repeatedly reaffirmed by the Supreme Court and the federal courts as recently as US v. Swinton (1975) and Lewis v. US (1980), indeed right up until US v. Heller (the DC handgun case) in 2008. In US v. Heller, Justice Antonin Scalia wrote for the majority, ruling that the 2nd Amendment did create an individual right to bear arms. In his ruling, however, Scalia plainly stated that this right did not include military style weapons; “M-16 rifles and the like, have no Second Amendment protection and may be banned.” Well, if the consensus of the courts has historically been that the 2nd Amendment does not confer an individual right to bear arms, when did that change, and why?
The NRA – Then & Now
For most of its history, the NRA was actually very pro gun control. That did not change until the mid 1970’s. Because of the JFK, RFK and MLK assassinations in the 1960’s, a number of strong gun control legislation was passed and U.S. gun ownership began to decline sharply. It was the decline in gun ownership that triggered the transformation of the NRA. One of the first tactics under the new NRA strategy was to buy Ronald Reagan. As governor of California, Reagan led the state to enact a series of very restrictive gun laws. (Of course, California’s restrictive gun laws were in direct response to the emergence of the Black Panther Party and the fear of race war.) Just a few years later, Reagan was a paid NRA consultant when he ran for president against Gerald Ford in 1976. Ford was pro gun control. Reagan, with a national soap box, argued that law abiding citizens had a right to own guns. The next thing the new NRA did was to endow university chairs and fellowships, and pay law school professors across the country to publish scholarly papers arguing for a reinterpretation of the 2nd Amendment as conferring an individual right to bear arms. This aggressive campaign of faux legal scholarship (which has been quite successful) led Supreme Court Chief Justice Warren Burger (appointed by Richard Nixon) to declare on PBS in 1991 that the NRA had perpetrated “one of the greatest pieces of fraud – I repeat the word fraud – on the American public by special interest groups that I have ever seen in my lifetime.”
A Defense Against Tyranny
There are many who argue that the individual right to bear arms is an essential defense against the potential tyranny of the federal government. My response to this argument is twofold:
Yeah, good luck with that.
That is not what our freedom-loving founding fathers had in mind.
In the years leading up to the American Revolution, the British army frequently confiscated the weapons of the local populace as a means of suppressing civil disobedience or insurrection. And so the Framers of the Constitution did indeed want to include protections against this practice. But the common practice at the time was that individual gun owners stored their guns collectively in a militia storehouse, where they were regularly cleaned and maintained and where ammunition was acquired and maintained collectively, not individually. Most people had no reason to keep a gun in their own home, even if they owned one, unless you lived on the frontier. If hostile soldiers were marching toward town, there would be ample time for men-folk to get to the courthouse and get their guns. The important thing to remember is that the British were able to confiscate the guns of the colonists not because of any military advantage, but because no one contemplated the idea that you could disobey British authority. The British army had "the law" on its side and the average citizen does not readily contemplate breaking the law. And so...the framers of the Constitution knowingly put "the law" in the hands of the people. The people had a legal right to their weapons. But it was meant as a collective right, not a personal right.
The first clause of the 2nd Amendment is "A well regulated Militia". I would argue three points:
The framers of the Constitution never wrote anything by accident. They were obsessively precise,
"well regulated" in the context of the Constitution means regulated by the federal government,
"Militia" is written with a capital M, signifying that it pertains not just to any generic definition of militia, but specifically to "the Militias of the various States" as referenced elsewhere in the Constitution.
In other words, the Constitution is saying that the official state militias are okay, as long as the federal government can regulate them. And don't forget, the President is the Commander in Chief of the various state militias.
This interpretation is supported by historian Gary Wills. “The men who gathered in Philadelphia in 1787 weren’t precursors to France’s Robespierre or Russia’s Leon Trotsky, believers in perpetual revolutions. In fact, their work on the Constitution was influenced by the experience of Shays’ Rebellion in western Massachusetts in 1786, a populist uprising that the weak federal government, under the Articles of Confederation, lacked an army to defeat.” Furthermore, these state militias were very important to the southern slave-owning states who seemed to operate in a constant state of paranoia and terror of an imminent slave uprising. A well-armed militia was their insurance of a good night’s sleep.
As for my take on whether the 2nd Amendment is a bulwark against tyranny: If a small group of citizens wish to overthrow the American government by force of arms, it will never, ever, ever succeed. If a large group of citizens wish to overthrow or secede from the American government, you're basically talking about something like the Confederacy and Civil War. Chances are pretty good the outcome would be the same. If the majority of Americans wished to overthrow the American government, the non-violent means are simpler, safer and faster. It's called election day.
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