Gun Control and the Evolving Second Amendment

One Year Later

By: Devin Hughes

In The Second Amendment: A Biography, Michael Waldman, President of the Brennan Center for Justice at NYU School of Law, provides a detailed yet highly accessible examination of the Second Amendment. Rather than becoming bogged down in parsing the precise wording of the Amendment, he provides a much broader and illuminating history of how the Amendment has evolved through time. Waldman’s book is an invaluable guide to navigating claims made about the Second Amendment and the historical roots of our current national debate over guns.

Waldman begins with the Revolutionary War, the crucible that formed both our country and later the Constitution. With the success of militia units at Lexington and Concord as well as during the siege of Boston, citizen soldiers seemed more than a match for the well trained professionals they faced. This illusion swiftly evaporated. The disastrous Battle of Brooklyn and other defeats combined with mass desertions and a general lack of discipline convinced even the fiercest defenders of militias to admit that relying on them for defense was foolish. Yet among the general public, militias remained very popular. By the end of the war, Congress was faced with the difficult task of paying homage to the militia system while creating an effective defensive force to maintain security. Shays’ rebellion further highlighted the need for an effective military force and served as a catalyst for the Constitutional Convention.

While today we see the Bill of Rights as a vital part of the Constitution and treat it with gospel-like reverence, when the amendments were originally proposed it was met with a yawn and shrug by both federalists and anti-federalists. This general lack of interest at the time has resulted in the large amount of contention surrounding the original intention of the Second Amendment. The few discussions surrounding the right to bear arms during the Constitutional debate revolved around State versus Federal control of the militia. Most of the quotes that appear to make clear statements about the individual right to bear arms are either completely fabricated or wildly removed from context.

Indeed, in spite of what some gun advocates contend, gun control was an integral and ubiquitous element of early American life. While muskets, the primary weapon for militia service, were largely unregulated, strict regulations on concealed weapons and gunpowder storage along with weapon inspections and even loyalty oaths were common across the states. Although these regulations don’t directly indicate the meaning of the Second Amendment (which at that time only applied to the Federal Government), they do reflect the historical context of “bearing arms.”

As the US expanded westward, violence dramatically increased in border towns where rule of law was not as firmly established. Western states quickly began adopting explicitly individualistic language in their versions of the Second Amendment. This violence and individualistic language sparked the first debate (almost exclusively on the State level) of whether the right to bear arms was solely in the context of militia service. An early case in Kentucky that adopted an individualistic interpretation prompted the horrified state legislature to issue a devastating critique of the “perfectly ridiculous” decision, and the legislature eventually modified the State’s constitution to override the ruling. Cases in Tennessee and Arkansas solidified a collective right consensus that would last more than a century.  As Chief Justice Ringo of Arkansas wrote about the individual right delineated in Kentucky’s case:

“However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquility and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary.”

Between 1888 and 1960, every single law review article written on the Second Amendment rejected an individual rights interpretation. The 1934 National Firearms Act and subsequent Supreme Court Case US v. Miller were exemplars of this legal consensus. During the debate over the bill, the president of the NRA (National Rifle Association) explicitly stated that he had not given any thought over whether the bill violated the constitution and later wrote that the right to personal firearms could not be found in the Constitution. By the 1960s, the old militia system was long dead and the Second Amendment itself was an archaic relic irrelevant to modern society. This would quickly change.

In 1977, the NRA underwent a massive upheaval (referred to as the Revolt in Cincinnati) as it tried to retreat further from national politics. Infuriated by the NRA’s timidity, the most extreme element of the NRA threw the old leadership out and installed firebrands from other gun activist organizations Whereas the old NRA had largely focused on hunting and didn’t overtly attempt to block gun regulation, the new regime was an entirely different animal. The right to bear arms became sacrosanct, and the interests of hunters became secondary.

Around the same time of the Cincinnati Revolt of 1977, Second Amendment scholarship also underwent a dramatic shift. From 1970 to 1989, more than 27 law review articles were written supporting the individual rights interpretation, versus only 25 for the collective/civic view. More than half of these articles were written by a handful of lawyers employed by the NRA or various other pro-gun groups. This shift in legal scholarship and pro-gun lobbying coincided with an almost equally dramatic rise of conservative justices in federal courts. The stage was set for a legal showdown.

DC v. Heller represented the climax of the battle between the old collective consensus backed by more than a century of legal precedent and a significant majority of historians, and the new individual rights view bolstered by a wave of recent scholarship and public support. And while the individualistic interpretation proved victorious, the expected fall of numerous firearms laws across the country failed to materialize. Since the case, the vast majority of gun regulations across the US, including assault weapons bans, have been upheld as constitutional.

The central message of Waldman’s book though is not whether the founders saw the Second Amendment as a collective, civic, or individual right. Even asking this question of the founders’ intentions belies a misunderstanding of that time period. Rather, Waldman‘s history demonstrates that the Second Amendment has evolved dramatically over time. This evolution has been borne out of necessity in order to counter new threats to public wellbeing. Taking the founders’ words as gospel merely serves as a dangerous excuse to dodge critical public safety questions.

Indeed, Justice Scalia’s crowning triumph of originalism, when seen in historical context, in fact represents the opposite of what he professes. DC v. Heller was not the product of unprecedented historical analysis uncovering long lost truths, but was rather the culmination of a decades long political and social movement. However, Waldman emphasizes, trying to counter orginalism with originalism, while tempting, is ultimately a siren’s call. Whether we want it to be or not, the Constitution is living, and the Second Amendment is no exception. We should embrace our living Constitution and the flexibility it provides to solve the tragic problem of gun violence.

 

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  • Cerin

    Be careful with this line of reasoning. If the Constitution is indeed a “living document”, whose interpretation changes over time to better accommodate the needs of society, then the fact that the majority of courts and legislatures have chosen to interpret the 2nd amendment as an individual right is a damning indictment against gun control. Only the most adamant gun control advocate would imply that an individual has no right to own a gun, even for self-defense.

  • Can you explain how it would be possible to violate a collective interpretation of the second amendment?

  • “a massive column that will rock the gun violence debate”

    Ooh, I’m all a quiver over that.

    So what august publication shall we see that in? The Harvard or Yale Law Reviews? Maybe even a 2nd tier school like Michigan?

    Na, I’m guessing Salon, Esquire, The Nation, or the New Republic, if anywhere other than here.

    Of course anything dropped in a echo chamber will make a noise there.

    Doubt it will have any impact anywhere else.

  • BK

    The debate about the 2nd Amendment is always goes back to opinions in law cases and I think misses the essential question. Do you believe you have right to defend yourself?

    If you do, how are you going to defend yourself against a group like the ones that attacked my neighbors last week for the crime of being a gay couple holding hands. I wonder how aggressive the group of 12 middle class thugs would have been if in their other hands my neighbors were holding Glocks.

    I am old I have been a nurse for 30 years, and most of those years in Trauma or Forensics I have seen what happens to the disarmed, I treated the victims and the criminals, and on personal note had my ass kicked by thugs when I was unarmed, and encouraged other thugs to somewhere else by showing the revolver I was carrying in a holster under my jacket.

    At that time I could have been arrested because where I lived I couldn’t prove I had the need to carry or any political influence to get a permit. It was not a good enough reason that I had to accompany my partner, who is an insane teacher on home visits to the very slums where so many of my gang related victims were living. The irony of this is all my police friends from the ER were telling me to break the law, and offering me advice on what type of gun to get.

    Without any desire to seem insulting, I am guessing you are young and believe that evil lies with the object and if we get rid of the guns everything will be safer. I have treated every type of violence you can imagine, and when that violence is directed at another it is always about power and control.

    When I was attacked I was young, 6 foot 4 inches tall with extensive training in martial arts, it did not help because there were 4 of them who wanted to beat the queer, I survived because I was young and strong and able to take the beating.

    I wonder what would happen to my partner who is now 56, has no training or experience, is much smaller then me and walks around unaware, believing all people are good.

    Sorry long thought I believe there is such a culture of expecting the government to protect us, when that certainly has not been the case in my community or for that matter in poor communities of color.

    • Bravo. A well crafted story cleverly weaving in so many of the popular arguments into a real life scenario.

  • Cerin

    Please don’t be rude. That only reinforces the stereotype of the abrasive “gun-nut”. Short-sighted gun-control policies won’t be defeated by rude snarky comments, even if they are cathartic.

  • The amicus brief filed by fifteen professional historians in the Heller case, which is linked in the above article, contains extensive historical errors. I have examined and documented those errors in a twenty-four part series of posts at my blog, On Second Opinion. The series title is, Root Causes Of Never Ending Second Amendment Dispute.

    The link to the first three parts of this series is http://www.onsecondopinion.blogspot.com/2009_01_01_archive.html

    I also critiqued the historians’ Heller amicus errors in an article at History News Network shortly after the brief appeared. That article, as titled by the Network’s editor, Why DCs Gun Control Law Is Unconstitutional, is available online at this URL:

    http://historynewsnetwork.org/article/47238

    Arguments about Second Amendment history and purpose will continue until those who rely on self proclaimed “experts” for their understanding of it, such as the completely off-base Heller professional historians, take a look at the facts of American History for themselves.

  • Arch Stanton

    It bears pointing out that ‘Historian’ Carl T. Bogus actually sits on the Board Of DIrectors at the Violence Policy Center.

  • Arch Stanton

    “At 27 words long, the Provision is the shortest sentence in the U.S. Constitution.” Waldman presents this statement about the 2nd Amendment and how simple it is. A little checking finds that Article II, Section 1 of the Constitution gives us this: “The executive power shall be vested in a President of the United States Of America.” I count only 15 words.
    Funny how these ‘Historians’ and ‘Constitutional Scholars’ seem to make such basic and embarrassing errors.

  • bakkhus

    An interesting piece, but unpersuasive. U.S. v. Miller isn’t a monument to the “collective right” case, and there isn’t any court opinion prior to Cases v. U.S. (2d Circuit, IIRC) that espouses that nonsense.

    There’s no such thing as a “collective right.” There never was with respect to the 2d Amendment.

    The Second Amendment was written and adopted to protect the states’ ability to raise a militia in the event Congress exercised its militia powers under Art. I Sec. 8. Madison and the First Congress weren’t looking to alter or abolish those powers, but they were looking to allay concerns over the delegation of authority to Congress over the militias of the several states. The solution to this problem was to protect the individual right to keep and bear arms from Congressional action. Congress would still be able to activate the state militias as needed for Federal service, and the states would be able to raise more militia from their armed populations.

    It doesn’t preclude gun control. It does preclude unreasonable gun regulations which place a undue burden on the right to keep and bear arms without a compelling state (or national) interest being served.

    A link in your piece is to the Kentucky decision State v. Buzzard. Buzzard offers a case in point. At issue was a conviction (overturned by a lower court) for violating a statute against carrying concealed weapons. It was not a statute which forbade the keeping of arms, or even carrying them. It regulated the manner in which arms could be carried in public. Far from declaring the right to keep and bear arms is a collective one, the Kentucky Supreme Court in Buzzard noted that the right isn’t a license to do whatever one wants with arms, and is subject to sensible regulations.

    ” And it is confidently believed that the people designed and expected to accomnplish this object by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not designed to operate as an immunity to those who should so keep or bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.”

    Not the state, but the people. The purpose for protecting the right was to ensure the effectiveness and continuation of the militia, but the scope of the right is not to the militia or to the state, but to the people.

  • Bob

    Ah yes, “the Evolving Second Amendment.”

    Pardon me but we have NOT changed the US Constitution since it was written 238 years ago and have NOT made many changes to the Amendments either. Plus the most recent Amendment was not real recent either.

    The ONLY evolution to the Second Amendment is in the minds of those who wish it did not exist, those who believe the Constitution is a “living document” rather than a set of requirements and limitations on the Federal Government!

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  • William Ashbless

    Where to begin,
    Waldman writes this: “At 27 words long, the provision(2nd Amendment) is the shortest sentence in the Constitution.”

    Don’t need to look further than Article II, Section 1 for, “The executive Power shall be vested in a President of the United States of America.” I count 15 words. Making a bold claim that is so easily refuted makes Waldman’s case look rather tenuous. Poor, incomplete or sloppy research? No wonder you guys are such a fan of his.

    Waldman’s …..”strict regulations on concealed weapons and gunpowder storage…….” needs a little bit of context.

    Men openly displayed arms in their day to day lives. Concealed weapons were the favorite of criminals and legislation targeting this reality was passed to forbid hidden weapons.
    Black powder was(and still is) classified as an explosive and is very unstable compared to modern, smokeless, powder. Laws to prevent buildings from blowing up because of unsafe storage are not a gun control issue. It was to prevent catastrophic explosions and fires in urban areas.

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