Professor Saul
Cornell
and the former
Director of the Second Amendment
Research Center
The Second Amendment
of their imagination:
Gun-rights advocates
need to admit that the Founders
were fine with gun confiscation, among other
things
06/22/2016
In the period
between 1968 and 2015, more Americans
have died as a result of gun violence
than perished in all of America’s wars combined.
Can anyone
honestly
say
that our current gun policies
are promoting
the “security of a
free state”?
The bottom line is simple:
the Second Amendment
requires more gun regulation,
not less.
In the Supreme Court
ruling in District of Columbia vs. Heller, which enshrined the individual right
to carry a weapon but also permitted reasonable regulations, Justice Antonin
Scalia asserted that Second Amendment liberties should enjoy legal protection
of the same scope they enjoyed at the time of their adoption.
But at that time,
there was little problem disarming individuals
who posed a threat to public
safety.
The right to keep
and bear arms was always subject to a range of restrictions
and limitations
that simply did not apply to freedom of the press or of religion.
Pennsylvania, in its
1776 Constitution, was the first state to include an express provision
affirming the right to bear arms.
It also passed a
stringent loyalty oath
that disarmed a large proportion of its population.
Once again, gun
rights advocates have invoked the Second Amendment
to block common-sense
legislation designed to curb gun violence.
But those who
constantly appeal to that sentence in the Constitution as an obstacle
to
reasonable gun regulation are ignorant about
the Founders’
own views about gun
regulation.
Any honest historian
of the early Republic will tell you that lax gun laws
are not in fact
pro-Second Amendment; they are anti-Second Amendment.
Let’s start with the
actual text of the 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.”
Although much has
been said about
the beginning and end of the text
with gun control
advocates focusing on the
“well regulated
militia”
and gun rights
advocates leaning on the
“right of the people
to keep and bear Arms”
hardly anyone ever
talks about the part of the amendment
that speaks about
promoting the
security of a free state.
Similar oaths were
in force in most of the other states.
When Congress
considered amendments to the federal Constitution, New Hampshire offered an
alternative to the text of what eventually became the Second Amendment.
That proposal would
have prohibited Congress from disarming
“any Citizen unless
such as are or have been in Actual Rebellion.”
Congress wisely
rejected this extreme measure because it would have made America at the time
less secure.
But the State of New
Hampshire had disarmed loyalists during the Revolution.
No one disputed that
it was perfectly legal for the state to do this;
the concern was
giving Congress the same power that states had already exercised repeatedly.
The Founders were
also aware of a variety of common-law restrictions on keeping and bearing arms.
Under common law,
any person in the community could approach a justice of the peace and demand
that an individual be preemptively disarmed if they posed a danger to public
safety. Such persons would be required to post a peace bond, much like a modern
bail bond.
All of which is to
say, the right to keep and bear arms was never an absolute freedom.
It was always
balanced against public safety.
While we need not
emulate the Founders’ policies exactly
today, for instance,
we have a higher standard for protecting due process
it is clear that
they would never have wanted us to sacrifice collective security so that a few
citizens could avoid dealing with some additional red tape.
It is not the real
Second Amendment written by the Founders that poses a barrier to taking
decisive and reasonable steps to lower the carnage in our streets;
it is the mythical
Second Amendment imagined by the gun lobby.
Saul Cornell is the
Paul and Diane Guenther Chair in American History at Fordham University.
The Bill of Rights,
the first 10
amendments to the Constitution.
(Mel Evans/AP)
In the coming
months, as the nation begins a serious discussion about gun regulation, the
meaning of the Second Amendment
the statement that
“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”
will be much
discussed.
It is vital that
Americans separate myths from realities, because what many of us seem to have
forgotten is that, in the vision of the founders of the United States of
America, the right to bear arms carries with it enormous burdens and
responsibilities.
In fact,
if we restored the
Second Amendment to its original meaning,
it would be the
NRA’s worst nightmare.
Invoking the Second
Amendment
ought to be a more effective argument
for
increased regulation than
it is against it.
In 2008, a closely
divided Supreme Court abandoned more than 70 years of precedent and for the
first time in American history affirmed that the Second Amendment is about a
right to have a handgun in the home for self-defense.
Lost in most of the
commentary then and now is that this is almost the exactly opposite of what
James Madison,
the primary
architect of the amendment, intended, and is hard to reconcile with the way
most ordinary Americans would have read it in 1791.
In 1776,
most of the original
state constitutions did not even include an arms-bearing provision.
The few states that
did usually also included a clause protecting the right not to bear arms.
Why?
Because, in contrast
to other cherished rights such as freedom of speech or religion, the state
could not compel you to speak or pray.
It could force you
to bear arms.
The founders had a
simple reason for curbing this right:
Quakers and other
religious pacifists were opposed to bearing arms, and wished to be exempt from
an obligation that could be made incumbent on all male citizens at the time.
When the Second
Amendment is discussed today, we tend to think of those
“militias”
as just a bunch of
ordinary guys with guns,
empowering themselves to
resist authority when and if
necessary.
Nothing could be
further from the founders’ vision.
Militias were
tightly controlled organizations legally defined
and regulated by the
individual colonies before the Revolution
and, after
independence, by the individual states.
Militia laws ran on
for pages and were some of the lengthiest pieces of legislation in the statute
books.
States kept track of
who had guns, had the right to inspect them in private homes and could fine
citizens for failing to report to a muster.
These laws also
defined what type of guns you had to buy
a form of taxation
levied on individual households.
Yes,
long before
Obamacare,
the state made you
buy something, even if you did not want to purchase it.
(The guns required
by law were muskets, not pistols.
The only exceptions
to this general rule were the horsemen’s pistols that dragoons and other
mounted units needed.)
The founders had a
word for a bunch of farmers marching with guns without government sanction:
a mob.
One of the reasons
we have a Constitution is the founders were worried about the danger posed by
individuals acting like a militia without legal authority.
This was precisely
what happened during Shays’ Rebellion,
an
insurrection in
western Massachusetts
that persuaded many Americans
that we needed a stronger
central government
to avert anarchy.
Many people think
that we have the Second Amendment so that we can take up arms against the
government if it overreaches its authority.
If that
interpretation were correct, it would mean that the Second Amendment had
repealed the Constitution’s treason clause,
which defines this
crime as taking up arms against the government.
In reality, in the
first decade after the Constitution, the government put down several rebellions
similar to Shays
and nobody claimed
that they were merely asserting their Second Amendment rights.
So if the Second
Amendment does not have much to do about owning a pistol for self-defense, does
that mean the founders did not esteem this right?
Obviously the answer
to that question is no.
Not every right
valued by Americans was expressly protected by a constitutional provision.
The right of
self-defense was part of the common law, a long tradition of rights defined by
the English courts over a period of centuries.
But rather than
invoke the Second Amendment in the coming months, Americans need to learn
something about the historical origins of this part of our constitutional
tradition.
The bottom line is
simple:
the Second Amendment
requires more gun regulation,
not less.
Cornell is the Paul
and Diane Guenther Chair in American History at Fordham University.