This morning I gave a talk to this group:
Here is an [edited] transcription of the talk along with citations and a list of sources at the end.
The title of this talk is “What We Learn from the History of the Second Amendment.” The history of the Second Amendment of course includes the history of gun laws in America and, because the Supreme Court functions as the final interpreter of the Constitution, the history of Supreme Court rulings. But that was kind of long for a title, so the title we have here is, “What we learn from studying the history of the Second Amendment.”
The Second Amendment is short, and I’m sure you’re all familiar with it, but before I get started, I’ll recite it to make a point. The Second amendment says this: “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 part I want you to notice before we get started is that it opens by talking about well-regulated militias.
So what do we learn from studying the history of the Second amendment? The first major takeaway is that there have always been gun control laws in America. There were gun control laws in colonial America. And there were gun control laws shortly after the Second Amendment was ratified. The idea that the Second Amendment allows unfettered access to guns is therefore nonsense.
So that you can get a sense of our early history of gun laws, let me walk you through some of these. What may be our first gun control law dates from Jamestown, Virginia, 1631. This law made it illegal to sell or give guns to Native Americans. Several colonies ended up passing such laws. You might be thinking, wait? Does that count? Well, it seems to me it does. White traders, who traded with the Native People got a lot of goods in exchange for guns. They were profiting from selling guns. And the leaders of the colonies said no, we are not going to let you do that. Part of the motivation, of course, was that the colonists wanted to be the only ones on the continent with guns, but whatever their reason, they still limited the sale and trading of guns.
All right. Let’s look at a few other more traditional gun control laws. New Jersey, in 1758, had a law banned wearing pistols in public because it “induced great fear and quarrels.” Virginia had a law forbidding people from riding armed by night or day, in fairs, markets and elsewhere. Connecticut had a law that made it illegal to fire a gun in or near of the town of New Castle.
These are undeniably gun control laws.
There were of course gun laws limiting the access of enslaved people to guns. Even freed blacks had limited access. At the same time, there were also laws requiring white men to own guns. One, from eighteenth-century Virginia stated that all men, except Black men, must be provided with arms and ammunition or be fined.
You may be thinking wait. Laws requiring gun ownership?
This brings me to an important point: The early militias, particularly in the South were, used to police the enslaved population and the militia members had to furnish their own guns. The way it worked was like this. If there was a need for a militia, the word would go out and the men would grab their guns and say meet in the town square. The most common uses for militias were to police the enslaved populations, including putting down slave rebellions, and hunting down runaways. Militias were also used in wars against Native Americans. Same thing: The word would go out that an attack was imminent, and everyone would grab their guns and assemble.
Militias were also use to fight the Revolutionary War. One thing that happened in the Revolutionary War was that some southern states refused to send their state militias out of their state because they needed the militias at home to keep the enslaved people in line. Not surprisingly, some of these militias were useless up against a real army. They were used to policing enslaved people, who were basically unarmed, which was very different from facing a trained army.
In fact, General Washington had some harsh words to say about citizen militias. He talked about how men dragged from their homes and unacquainted with warfare were timid and prone to desertions, They were generally not good soldiers. He also said it was cheaper to pay a standing army than to depend on citizen militias. To quote Washington, to depend on citizen militias was to rest on a broken staff.
Washington’s views went against the thinking of a lot of founding generation because, having experienced a monarchy, they worried that a federal government would use a standing army to oppress the people. So one common idea at the time was: Don’t let the federal government have a standing army, but instead rely on citizen militias and call up an army only when there is an actual adversary.
In those days, that made some sense. From the time you knew there would be a war until the time the war actually started, there was a gap. With modern warfare this wouldn’t work anyway. Imagine December 7, 1941. Pearl Harbor as been attacked. But the United States has no standing army, so “everyone grab your guns. We have a problem.” This wouldn’t work today. But citizen militias were a thing in the 18th century.
This brings us to the drafting of the Constitution. The Constitution allows the federal government to call up an army. It also allows the federal government to call into service the militias from various states. Specifically, Article II section II says that the President is commander in chief of the United States armed forces AND is commander in chief of the militias of the several states, when they are called into service. In other words, the Constitution gives the federal government the power to call state militias into service and take command of them.
This provision worried southern slaveowners. We have a pretty good record of the discussions that happened in the various state houses when the states were deciding whether to ratify the Constitution and join the union. In the South, state government leaders worried that this provision would allow the federal government to call away their militias and leave them with no way to police the enslaved population. There had been slave rebellions and some were bloody. White Southerners lived in fear of these. Obviously without militias to police the enslaved population, the institution of slavery would not only end, but end in a manner shall we say, not good for the continued health of the slaveowners.
It was Patrick Henry who said it like it was. In a meeting in the Virginia statehouse, he said this particular provision in the constitution will allow the North to end slavery by leaving the South without their militias. “We know what this is about . . . slavery is detested everywhere. The militia is our ultimate safety. We can have no security without it.” He added, “They want to take your (n-words) away from you.” (Waldman)
After this discussion in the Virginia state house, James Madison a Virginian and a slaveowner who had been part of this discussion, drafted the Second Amendment. Madison wrote this: 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.
Madison’s version is close to what we ended up with. The Senate revised Madison’s draft and made a few changes. The last part about the religious exemption to service was dropped. The first two phrases were reordered. Madison opened with “the right of the people to bear arms shall not be infringed,” and the final text starts instead with militias. Madison’s semicolons were replaced with commas, which has the effect of making the phrase about the right to bear arms dependent on the phrase about militias.
We don’t know why the Senate made these changes because they left no record of their discussion, but the final draft has more emphasis on militias and of course, links gun ownership to state regulated militias. It’s therefore hard to read the second Amendment as protecting individual gun ownership. So how do we get from this Amendment to the idea that the Second Amendment protects individual gun ownership? The argument, which is fairly modern, goes like this: The second amendment protects militias. Members of militias in the old days had to furnish their own guns. The government didn’t provide them. Therefore, the second amendment protects private gun ownership because without private gun ownership, the early Americans couldn’t have militias.
The Second Amendment was widely accepted because there was widespread belief that the a federal government would use a standing army to oppress the people, so citizen militias were safer. But there’s no getting around the fact that the person who wrote the Second Amendment wanted to protect state militias because he wanted to preserve the institution of slavery.
This brings me to Takeway #2: Another thing we learn from studying the history of gun laws in America is that gun laws, including the Second Amendment, were a way to maintain white power. Another way to say the same thing is that gun laws— like other laws— helped maintain the hierarchy. Prior to the modern civil rights and women’s rights movement, America lived in a particular kind of hierarchy that some scholars call a patriarchy: an ordering with white men at the top and black women at the bottom. There were exceptions when people achieved success despite the fact that they were not white men, but for the most part, American institutions—universities, the government—were controlled by white men.
Laws forbidding giving guns to Native Americans. Laws forbidding enslaved people from carrying guns. Laws requiring white men to carry guns. And a Second Amendment intended to preserve the plantation system. All of these laws were intended to maintain the hierarchy.
Let’s return now to Takeaway #1: There have always been gun control laws. After the Second Amendment was passed, the states, including Virginia, continued to pass gun control laws, completely undermining the argument that the Second Amendment guaranteed unfettered access to guns.
A few examples: 1794 law in Virginia made it illegal to carry guns in fairs and markets. In 1820 a law in Arkansas outlawed concealed weapons. In 1837 Georgia completely outlawed pistols and dirks, among other things. All these gun control laws passed shortly after the Second Amendment was ratified. Seems like the early Americans didn’t understand the Second Amendment to mean that guns couldn’t be controlled.
We even had gun control laws out in here the “Wild West.” A San Francisco law from the gold rush era made it illegal for any person in San Francisco to carry a pistol. Not surprisingly before the Civil War, there were much more stringent laws limiting gun ownership among non-whites.
In our march through the history of gun laws we come to the post Civil War South, when Ku Klux Klan members were terrorizing the newly freed African Americans. Congress, which was controlled at the time by the North, responded to the Ku Klux Klan by enacting the Enforcement Act of 1871, which prohibited people from banding together or going about in disguise on the public highways with the intention of depriving others of their Constitutional rights. Everyone understood to that the victims of these bands of people were African Americans newly released from the bonds of slavery.
The story I’m about to tell you begins in Louisiana when a group of Black men were armed and assembling peacefully. A much larger group of Ku Klux Klansmen and members of the White League rode up and surrounded them. To make a gruesome story short, the white men first ordered the Black men to drop their guns, which they did because they could see they were outnumbered. After they dropped their guns, the White men murdered all of them. The incident is known as the Colfax Massacre.
The White men were charged with violating the Enforcement Act. The charge was that the White Men violated the rights of the Black men by taking away their right to assemble peacefully and bear arms. You may be wondering, why weren’t they charged with murder? Well, murder is a state crime and the Enforcement Act was a federal crime, and it was understood at the time that no Mississippi state court would convict white men of murdering black men. The juries were all white and it just wasn’t going to happen. So these Klansmen were charged in federal court of violating the Enforcement Act. They went to trial. The lower court said: Guilty! Yeah, these guys violated the Enforcement Act.
The case went to the Supreme Court. The Supreme Court overturned the convictions. The Supreme Court said that the Second Amendment has no other effect than to restrict the powers of the federal government. The federal government shall not infringe the right to bear arms. If one individual interferes with the rights of another individual, that’s up to state governments to stop. Amendments to the Constitution allowed the federal government to prevent racial discrimination, but the Supreme Court actually said that nobody could prove the murders were racially motivated—which was absurd, of course. The ruling had the effect of denying Black men the right to bear arms and peacefully assemble, by refusing to punish the people who infringed on that right. Saying it was up to the states to protect their own citizens was a way of handing a victory to the former confederacy because the state of Louisiana was not about to honor the Constitutional rights of black men. They just fought a war saying that Blacks shouldn’t have constitutional rights.
Now we come to our next major Supreme Court case interpreting the Second Amendment. Later in the 19th century we had our first labor strikes. The unions and marchers had military parades. They marched through the streets with their guns. The Illinois legislature said no, we’re not going to allow this. So the Illinois state legislature added a section to the state military code basically saying that only militias organized by the state of Illinois had the right to bear arms. If you were not a state organized militia, you needed permission from the state if you wanted to be a militia and march with guns.
So one day a guy named Herman Presser, one of the union leaders and about four hundred of his buddies ignored this new law and went marching down the streets of Chicago. Herman Presser was on horseback with a cavalry sword. The men behind him had rifles.
Presser was arrested and charged with violating Illinois law. HIs defense? We are a citizen organized militia, and the Second Amendment protects our right to form a militia and carry a weapon. The lower court in Illinois said no deal. The court found Presser guilty of violating Illinois military code. Presser appealed his case to the Supreme Court. Again, Presser argued that his conviction was unlawful because the Constitution protected his right to parade down the street carrying a weapon. Basically he said, “I have a constitutional right to form a militia and carry a gun.”
The Supreme Court said Oh No You Don’t. The Supreme Court said we already explained this. It’s up to the states. That means it’s up to the state of Illinois to decide who is, in fact, in its militia. Therefore, the Supreme Court held, the Illinois law did not violate the Second Amendment and Presser is guilty.
This makes sense. A well-regulated militia means that it’s regulated, or controlled by the state. The Supreme Court went on to say that Illinois needs the power to regulate militias for the safety of the people. To deny Illinois the power to pass such a law would be to deny the right of the State suppress armed mobs and riots.
What do these two cases have in common? In both cases, the Supreme Court was saying that it’s up to the states. If states want to regulate guns, they can. If states want to let guys in white sheets murder Black men, that’s up to them, too.
Before I leave the 19th century, it’s worth noting that the NRA was founded immediately after the Civil War as a gun safety organization. In the Civil War, citizens were drafted as soldiers and handed guns. There wasn’t much training. A lot of these newly drafted soldiers had no idea how to handle their guns. As a result there were a lot of fatalities when soldiers accidentally shot their friends. When the war ended, all of these soldiers went home with their guns. The NRA was founded as a way to improve military readiness and to conduct marksmanship training so that people knew how to handle their guns. The NRA at this time was apolitical. If anything, they were Northern Union guys.
Now, let’s move forward to the 1920s and 1930s when Al Capone-type gangsters became a problem. These gangsters had a few preferred weapons. They liked machine guns and sawed-off shot guns. To try to control some of this gangster violence, Congress passed the National Firearms Act of 1935, which, among other things, outlawed machine guns and sawed off shotguns—the guns favored by these gangsters.
At the time, a guy named Karl Frederick was the chief lobbyist for the NRA. He was asked to address Congress about the National Firearms Act. A member of Congress specifically asked him if he though the law violated any part of the Constitution. He said, “I have not given that any study.” In other words, in 1935, the National Rifle Association had no opinion about whether the National Firearms Act violated the constitution and they made no objection.
The next story I’m going to tell you is about a guy named Jack Miller.
Jack Miller was a bank robber and gangster. When our story begins, he had been on a rampage of bank robberies. He and his friends would go into a bank with a sawed-off shot gun and come out with a suitcase full of money. Just like in the old gangster movies.
One day he and a buddy were pulled over by state police, and in their car, they had the kinds of guns outlawed by the National Firearms Act. They were charged and brought to trial. Their defense: The National Firearms Act was unconstitutional and a violation of their Second Amendment right to bear arms. So in other words, you’ve got these two bank robbers in court arguing that they have a right to sawed off shotguns.
The lower court agreed and said not guilty because the National Firearms Act infringes their Second Amendment rights. The prosecutors, the government, appealed to the United States Supreme Court. The Supreme Court disagreed with the trial court. The Supreme Court said the National Firearms Act was constitutional. The Court’s reasoning? The Court said there is no evidence that possession of a machine gun or sawed off shotgun has any reasonable relationship to preserving a well-regulated militia. Therefore, the Second Amendment does not guarantee the right to a sawed off shotgun, and therefore, these bank robbers do not have a Constitutional right to these guns. Therefore, they’re guilty of violating the National Firearms Act.
Moving along with our history, In 1968, after Robert Kennedy was assassinated, Senator Dodd, a Democrat from Connecticut, proposed a law to combat the problem of political assassinations. His proposed law (among other things) would regulate the interstate retail sale of guns, prohibit all sales to juveniles and convicted felons, and stop the import of military firearms.
It was called the Gun Control Act of 1968. Believe it or not, the NRA supported that act. The American Rifleman, the NRA magazine, responded to the 1968 Gun Control Act by telling its readers that the NRA “does not necessarily approve of everything that goes ‘Bang!’ ”
The idea that the Second Amendment allows unfettered access to gun didn’t take root in the NRA until the radicalization of the NRA, which happened in the 1970s. Before the 1970s, hunters and gun enthusiasts were members of both parties. NRA members were interested in gun safety and marksmanship. Some were hunters. Some enjoyed target practice. The NRA was pretty much nonpolitical.
What happened? Why the change? Well, the United States had just gone through some major changes.
I will give you 1954 as the pivotal date.
Before 1954 segregation in the United States was legal. Americans still lived in that hierarchy I told you about with white men at the top and black women at the bottom. Then in 1954, the Supreme Court, in a case called Brown v. Board of Education, held that segregation in schools was unconstitutional. This ignited the Civil Rights movement, which in turn ignited the women’s rights movement. What happened is that activists basically smashed the patriarchy.
So the 20 years between the mid-50s and the mid-70s saw incredible changes in this country. When there are rapid changes, we often get a backlash. The Civil Rights movement generated a backlash.
The radicalization of the NRA happened as part of that backlash. The history of the NRA is a big topic and a different lecture, but some things are relevant here because the NRA basically rewrote the Second Amendment. What happened was that in the late 1970s right-wing extremists took over the NRA. They advanced the idea that the Second Amendment required unfettered access to guns. This had never been the law. There had always been people who tried to advance that argument, but this had never been the official interpretation of the Second Amendment.
After the 1970s, the NRA began to take on the characteristics of a far right wing paramilitary. A lot of the current NRA members see themselves exactly that way. We saw that with the storming of the Capitol and the problems we’ve seen in places like Michigan where people who consider themselves citizen militias are defending themselves against what they see as a tyrannical government. They’re harkening back to the idea at the time of the Revolution that citizens need to be able to arm themselves against a tyrannical government and that the Second Amendment, allowing for citizen militias, enables that.
After years of radicalization of the NRA and NRA money pouring into the pockets of politicians, the government came to be populated with those who accepted the NRA’s radical new interpretation of the Second Amendment. By the turn of the twenty-first century, we had Supreme Court justices who accepted this interpretation of the Second Amendment.
This brings me to the last important Supreme Court case interpreting the Second Amendment.
This is the case that started when a special police officer and government security guard named Dick Anthony Heller, who lived in Washington D.C., wanted to bring his work revolver home. He applied for permission under Washington D.C. law, but his application was denied because he couldn’t show a need for a gun greater than any other residents of Washington D.C. When his application was denied, he found one of those radical NRA type lawyers and brought a lawsuit alleging that D.C.’s law violated his Second Amendment rights. In his lawsuit, he objected to several provisions of the Washington D.C. law. He said that the law gave the local government too much power to deny his right to keep a gun. He also objected to the requirement that any guns at home be kept inoperative. He said that was ridiculous—how can a gun be used for self-defense if it is kept inoperable.
To make a long story short, in 2008 Heller’s case went all the way to the United States Supreme Court. The Supreme Court agreed with Heller. The Supreme Court held that the Second Amendment guarantees an individual right to have gun for self defense in the home. It therefore found that the District’s handgun ban as well as its requirement that firearms in the home be rendered inoperative violated that right.
If this seems out of step with the entire history of previous jurisprudence on the Second Amendment, that’s because it is. The Second Amendment is all about militias. At the founding of the nation, only one state, Pennsylvania, included self-defense in its constitution as a reason to protect gun ownership.
I will note that that when the Supreme Court made its ruling in the District of Columbia v. Heller, it left a little bit of wiggle room. The Court said that like most rights, the rights secured by the Second Amendment are not unlimited.
The Court also said that states still had the right to prohibit the possession of firearms by felons and the mentally ill, and to pass laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and still had the power to impose conditions and qualifications on the commercial sale of arms. In other words, states could pass gun safety laws. But, the court said, the D.C. ban went too far and violated Heller’s Second Amendment right to keep a gun for the purpose of self-defense.
So what are our takeaways? I started with two: There have always been gun laws so the idea that the Second Amendment protects unfettered access to guns is nonsense. Second, the history of the Second Amendment is steeped in our racist past. The final takeaway is that the idea on which the Second Amendment was based— the need for state or citizen militias—is completely outdated.
You might be wondering: So what do we do about the Second Amendment? I imagine someone will ask, “how do we amend the constitution.” This is pretty difficult and not realistic unless you can get a lot more Democrats in office at the federal and state level.
Right now we have an extremely Conservative Supreme Court. Supreme Courts do change. Mostly in our history we had conservative Supreme Courts. Remember the Court that said you can’t prove that those guys in white sheets are motivated by racism? Pendulums swing, so I feel confident that with a lot of hard work we’ll once more have a progressive court that will understand that this isn’t the 18th century any longer and we need to reinterpret the Second Amendment in light of the realities of the 21st century. Finally, because there is wiggle room and states can pass safety laws, we can work on electing leaders who will pass the laws we need.
Sources
BOOKS
Davidson, Osha Gray, Under Fire: The NRA and the Battle for Gun Control, Iowa City: University of Iowa Press, 1998.
Walden, Michael. The Second Amendment: A Biography. New York: Simon and Schuster, 2014. Kindle Edition.
ARTICLES
Achenback, Joel, Scott Higham and Sam Horzitz, “Now NRA’s True Believers Converted a Marksmanship Group into a Mighty Gun Lobby,” The Washington Post, January 12, 2013. Available here: https://www.washingtonpost.com/politics/how-nras-true-believers-converted-a-marksmanship-group-into-a-mighty-gun-lobby/2013/01/12/51c62288-59b9-11e2-88d0-c4cf65c3ad15_story.html
Frassetto, Mark, “Firearms and Weapons Legislation up to the Early 20th Century.” (January 15, 2013). Available at SSRN: https://ssrn.com/abstract=2200991 or http://dx.doi.org/10.2139/ssrn.2200991
Frye, Brian L. “The Peculiar Story of United States v. Miller,” New York University Journal of Law and Liberty, available here: http://www.law.nyu.edu/sites/default/files/ECM_PRO_060964.pdf
(Other sources should come up easily in Google searches).