Deadly Rampage at Newtown Elementary School

12.18.12

Gun-Rights Advocates Should Fear History of Second Amendment

Think it’s one short sentence that gives everyone the right to bear arms? Think again. Saul Cornell unravels the tangled history of one of our most misunderstood Amendments.

On Sunday, New York Sen. Chuck Schumer went on CBS’s Face The Nation and argued that people who support gun control “have to admit that there is a Second Amendment right to bear arms”.

Schumer’s effort to reach out to the gun-rights community may be well-intentioned, but it is also deeply ironic. If the nation truly embraced the Second Amendment as it was originally written and understood, it would be the NRA’s worst nightmare.

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.

It’s time for a history lesson about one of America’s most popular and least understood rights. It’s also long past time to expose the hollow, ignorant fawning over the Second Amendment by gun-rights advocates for what it is.

In contrast to the libertarian fantasies that drive the contemporary debate about firearms in America, the Founders understood that liberty without regulation leads not to freedom, but anarchy. They understood that an armed body of citizens easily becomes a mob. In other words, a bunch of guys grabbing their guns and waving a flag emblazoned with a rattlesnake is not a militia.

A cursory look at the history of the Second Amendment shows that regulation was a central part of its rationale—putting “well regulated” at the very start of the amendment was no accident. For instance, starting in the colonial period, states enacted a variety of “safe-storage” measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston.

But many people who defend gun rights today are more than happy to skim over the first part of the amendment in their zeal to embrace the second. (The NRA itself literally chopped off that pesky first half when it chiseled the words on the face of its old headquarters.) As a result, our modern gun-rights ideology is often unmoored from any sense of corresponding civic obligation.

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This ideology claims to rely heavily on the Second Amendment, and yet it is rooted not in the Founders’ vision, but in the insurrectionary ideas of Daniel Shays and those who rose up against the government of Massachusetts in 1786 and 1787. Indeed, there are gun-rights advocates today who think the Second Amendment actually gives them the right to take up arms against the government—but if that were true the Second Amendment would have repealed the Constitution’s treason clause, which defines treason as taking up arms against the government!

This is all so deeply twisted: after all, the Founders framed the Constitution in part as a response to the danger posed by Shays’ Rebellion.

As a result, our modern debate over gun rights has virtually nothing to with the Founders’ Second Amendment; that debate actually started about 30 years after the Amendment was adopted. What emerged was the notion that reasonable regulation was not inconsistent with the right to bear arms. In fact it was the only option in a heavily armed society.

Up until the 1980s, there was no “individual-rights” theory of the Second Amendment. Many states had adopted provisions protecting an individual right to own guns, but this tradition was distinct from the Amendment. All that changed when right-wing think tanks undertook a conscious effort to fund new scholarship to rewrite the amendment’s history. At first that effort was not well received, even in conservative circles. As late as 1991, former Supreme Court chief justice Warren Burger famously called the idea of an individual right to bear arms “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.”

It’s long past time to expose the hollow, ignorant praise of the Second Amendment by gun-rights advocates for what it is.

But the revisionism ultimately won over most of the legal establishment, reaching its zenith in 2008, when the Supreme Court broke with 70 years of established jurisprudence and affirmed that the Second Amendment protects an individual right to have guns in the home for reasons of self-defense.

In order to do this, the majority followed the lead of gun-rights advocates and essentially excised the first clause of the amendment—the “well-regulated militia” part—from the text.

(Let us pause briefly to note the irony that the opinion, District of Columbia v. Heller, was written by none other than Justice Antonin Scalia—America’s staunchest defender of originalism, or reading the Constitution according to its supposed original meaning.)

If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could.

Even leading conservative legal scholars have harshly criticized the ruling: federal judge Richard Posner said most professional historians reject Scalia’s historical analysis in the case, and described Scalia’s jurisprudence as “incoherent”. Perhaps even more damning, J. Harvie Wilkinson, a federal judge appointed by Ronald Reagan, compared Heller to Roe v. Wade.

Of course, the fact that the Second Amendment is now treated as an individual right has almost no bearing on gun regulation, because no right is absolute. You can’t shout “Fire!” in a crowded theater, nor can you fire a gun in one.

And most Americans—including those who own guns—are open to reasonable gun regulation. The only people who oppose such policies are the NRA, extreme gun-rights advocates, and the craven politicians who do their bidding.

But what would such regulation look like?

For one thing, we could have a comprehensive system of firearm licensing and registration. At the moment we have none (even though it is hard to fathom how one might ever muster a militia without such a system). To avoid the irrational fears of gun confiscation, such a system ought to be instituted by the states, which maintained militias long before the Second Amendment existed. Could anyone with even a minimal understanding of the history of the Second Amendment seriously maintain that  a state-based system violated the Amendment’s text or spirit?

The bottom line is that although we hear the Second Amendment invoked all the time, few of those who trumpet it the most vehemently realize that restoring the Founders’ vision of the Second Amendment would be a call for more gun regulation, not less.