The Second Amendment’s History

In his Second Inaugural Address, President Obama reaffirmed his intent to seek gun safety laws in the wake of the Newtown massacre, but the Right insists the Second Amendment protects the right of individuals to own assault rifles. What is the real history of the “right to bear arms,” asks Beverly Bandler.

By Beverly Bandler

“A majority of Americans tell pollsters that they believe the Second Amendment protects private ownership of guns,” wrote Garry Wills, historian and author of James Madison, in 1995.

What is the basis for this belief and why was Wills focusing on this issue in 1995? Does the sparse language of the Second Amendment actually guarantee an individual right to bear arms? Protect private gun ownership and the right to carry firearms without restriction?

What does “the right of the people to keep and bear Arms” mean in the context of the entire Second Amendment language? In the context of the Constitution? In the context of the historical record? What was the feeling among the constitutional delegates about standing armies? Militias? Indeed, what were the politics of the Constitution and the Bill of Rights?

Is the meaning of the Second Amendment clear? If the “original meaning” of the Constitution is clear and unambiguous, why have we been paying the Supreme Court to interpret it for over 200 years? Why do some express a “majority opinion” and others dissent? Why do we have constitutional scholars?

James Madison was the author of the militia clause in the Constitution and the Second Amendment. What was Madison’s thinking and how do we know it? Are Madison’s words undebatable?

Have all the Supreme Court justices agreed on the interpretation of the Second Amendment? Why did the Court have one interpretation this amendment for almost one hundred years and then seem to reverse course? Was there a consensus on the Court?

What was the purpose of the Second Amendment? Was it to address self defense? To save slavery? To pacify the delegates from the South who were resisting support of the Constitution at the 1787 Convention because of the slavery issue?

No one would deny that slavery played an important role in the early development of the nation, but just how important was it? What do we know about the role slavery played in the Constitutional Convention and how do we know it?

Historian Gordon Wood notes that: “If we are to understand accurately the role of slavery in the making of the Constitution, we have to try to rid ourselves of our knowledge of what happened in the succeeding decades. The founders did not know the future, any more than we do, and most of them at the outset lived with the illusion that slavery in the United States was dying away and would somehow eventually disappear, especially with the ending of the slave trade. Of course, they could not have been more wrong.”

Politics in Philadelphia

What were the politics of the delegates to the Philadelphia convention in that hot summer? Was the Amendment designed to ensure that citizens are armed and ready to fight against their own government should it become tyrannical? Did the Framers consider the possibility of a “tyrannical” new government a priority consideration as they worked to produce a document designed to unify and stabilize thirteen colonies? Does such an idea make sense? What evidence supports the idea that the Framers feared that the new government might become tyrannical?

Were the Framers concerned about individual ownership of firearms or about “security” and “domestic tranquility?” Or, were the Framers concerned about maintaining order and avoiding chaos in the new nation, discouraging threats to its “security,” instability that could discredit the Revolution, and benefit its “enemies” abroad?

Has the belief that the Second Amendment protects private ownership of guns always been so? Or is this belief born of a disposition to believe that the Second Amendment is a “sacred principle” that protects gun ownership? Is this disposition of recent vintage?

Has the Second Amendment been “hijacked”? Have gun advocates intentionally misstated the law, repeating their misstatements and investing heavily in propaganda in order to persuade the public? Persuade the corporate media? Persuade courts?

The Right, the National Rifle Association and the gun lobby and even some on the Left given to romanticizing history have a “boiler plate,” knee-jerk response to the gun control issue, they would have Americans believe that the argument that the Second Amendment guarantees the right of individuals to own firearms is moot. Is that true?

And what about the term liberty? Just what does that word mean? To whom? Why?

“The American Right is fond of putting itself inside the minds of America’s Founders and intuiting what was their ‘original intent’ in writing the U.S. Constitution and its early additions, like the Second Amendment’s ‘right to bear arms,’ ” writes investigative reporter Robert Parry. “But, surely, James Madison and the others weren’t envisioning people with modern weapons mowing down children in a movie theater or a shopping mall or now a kindergarten.”

Abusing the Second Amendment

Historian Garry Wills wrote: “The recent effort to find a new meaning for the Second Amendment comes from the failure of appeals to other sources as a warrant for the omnipresence of guns of all types in private hands. Easy access to all these guns is hard to justify in pragmatic terms, as a matter of social policy. …

“That is why the gun advocates appeal, above pragmatism and common sense, to a supposed sacred right enshrined in a document Americans revere…We must put up with our world-record rates of homicide, suicide, and accidental shootings because, whether we like it or not, the Constitution tells us to. Well, it doesn’t.”

Few Americans know much about U.S. history, or specifically know history in relation to guns and the gun control issue and they do not do their homework, a comprehensive review of the related history.

The American public generally has the reputation for being anti-intellectual, ill acquainted with scholarship and considered to have short memories and even shorter attention span. Indeed, Americans appear to have given up reading altogether.

The result is that millions of Americans have embraced the dangerous and false notion that the Framers of the U.S. Constitution incorporated the Second Amendment in the Bill of Rights so an armed population could fight the government that the Framers had just created. This belief is not accidental, it has been deliberately taught, the result not of serious scholarship and study but the result of an agenda.

The gun industry, an interested party of the first order in the individual right interpretation of the Second Amendment, has averaged about $3.5 billion a year in inflation-adjusted terms going back to the mid-1990s. Journalist Lee Fang reports in The Nation magazine: “For every gun or package of ammunition sold at participating stores, a dollar is donated to the NRA.”

Too many Americans, frustrated and confused by a host of issues, and perhaps easily given to irrational fears and paranoia reinforced by a shallow and narrow frame of reference, have willingly embraced the Right’s well-funded propaganda and attempt to re-interpret the Second Amendment and re-write American history. They are all too willing to embrace anti-government hysteria and succumb to manipulation.

As Parry writes: “Today’s American Right is drunk on some very bad history, which is as dangerous as it is false.” The Right has been repeating lies about the Second Amendment and U.S. history for several decades, but as Franklin Delano Roosevelt once said, “Repetition does not transform a lie into the truth.”

Americans are being cheated by a Right that is trying to reduce American history to simplistic, comic-book levels and steal our history right out from under us. (Revisionism can come in “Left” clothing as well.)

Longstanding Precedents

Few Americans know that there are two opposing views of the Second Amendment: the collective right model and the individual model. They are unaware that the first view prevailed for almost one hundred years, that it was not only widely accepted it was uncontroversial.

Professor Robert J. Spitzer discovered in the course of his research for the “2000 Symposium on the Second Amendment” that from the time U.S. law review articles first began to be indexed in 1887 until 1960, all law review articles dealing with the Second Amendment endorsed the collective right model.

The first law review article asserting an individual’s right to own firearms for self-defense (or sport) did not even appear until 1960. Eleven articles discussing the Second Amendment were published during this 73-year period. All endorsed the collective right model.

“If there is such a thing as settled constitutional law,” wrote law professor Carl T. Bogus in 2000, “the Second Amendment may have been its quintessential example.” The United States Supreme Court addressed the Amendment three times in 1876, 1886, and 1939 and on each occasion held that it granted the people a right to bear arms only within the militia. [See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886);
United States v. Miller, 307 U.S. 174 (1939).]

The Second Amendment was adopted on December 15, 1791, along with the rest of the Bill of Rights. As passed by Congress, it read: “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 Right (and those who have bought into their argument) would appear to completely dismiss the first phrase relating to the militia, the phrase that gives the leading, primary meaning of the sentence and to which the second phrase relates. The word “militia” is defined in the Constitution itself:

“The Congress shall have Power . . . To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” [Article 1, § 8.]

Law professor Carl T. Bogus points out that the founders disagreed about how the militia ought to be organized: For example, “Madison favored a universal militia while [Alexander] Hamilton argued for a select militia. However, they agreed as a constitutional matter to leave this up to Congress; and the Constitution expressly gives Congress the power to organize the militia. Thus, the militia is what Congress decides it is, regardless of whether it differs from an eighteenth-century model. Currently, the militia is indisputably the National Guard because Congress has so decided.”

Twisted Quotes

Historian Wills’s lengthy and scholarly argument in 1995 was not to deny any private right to own and use firearms. He simply maintains that Madison “did not address that question when drafting his amendment.” He suggests that gun advocates lobbied using shoddy scholarship that included quotations that were “truncated, removed from context, twisted, or applied to a different debate from that over the Second Amendment” in order to find “new meaning for the Second Amendment” in effect, to sell the American public the idea that there is a “sacred right enshrined in a document Americans revere.”

It has been suggested that the basis for the majority opinions of the Court in the 2008 and 2010 cases that provided support for the individual model (in 2008, for the first time) is also based on questionable scholarship and intellectual leaps. It should be noted that in both cases the Court was divided 5-to-4. [See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 3025 (2010).]

Reporter Parry emphasizes: “The reality was that the Framers wrote the Constitution and added the Second Amendment with the goal of creating a strong central government with a citizens-based military force capable of putting down insurrections, not to enable or encourage uprisings. The key Framers, after all, were mostly men of means with a huge stake in an orderly society, the likes of George Washington and James Madison.

“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.”

Law professor Geoffrey R. Stone strongly suggests that: “It is time for opponents of gun control to stop mindlessly shouting ‘The Second Amendment!!’ as if that ends the discussion. It does not. Just as there is no First Amendment right to falsely yell fire in a crowded theatre, there is no Second Amendment right to carry an AK-47 there. And that is only the beginning of what the Second Amendment does not guarantee.”

We citizens don’t have to become constitutional lawyers or scholars on the Second Amendment. We do need to take the time to do some basic homework–and not be intimidated by right-wing bullies and their deep-pocketed propaganda campaigns. We need to reach a comfort level as to what is known, what is not known, what is debatable, and what is a misrepresentation or outright lie.

The Right has given us nothing but destruction and death. Irrational right-wing extremists and their so-called “conservatism” have transformed the United States into a nightmare.

They have given us not simply extraordinarily bad manners but conscience-less coarseness; distracted us with nihilistic obstructionism that prevents our being able to effectively solve major national problems; made us look like backward, ignorant, unworthy and reckless fools before the entire world; militarized our culture with an authoritarianism that would echo the Third Reich; robbed us of our joy, our peace of mind, our dignity and our self-respect; de-civilized us with fear, violence and ugliness; “drenched us in Bloodshed;” indoctrinated citizens with misrepresentations, distortions, and blatant lies; attempted to make superstition respectable and madness the norm; polarized our national community; and they want to steal our past, our American history as well.
Enough.

Alternative Reality

I am on the side of the collective right argument, the argument that the Second Amendment does not protect individual gun ownership, an argument supported by credible real scholarship by real scholars that supports the collective right argument.

I emphasize the word real because it is clear that too many Americans live in an alternative reality that confuses belief with facts, and are unable to distinguish scholarship from fanciful propaganda and scholars from lobbyists.

We may even have members of the U.S. Supreme Court who have succumbed to what is nothing less than a National Rifle Association (NRA) and gun lobby sales pitch that fits their right-wing, corporatist, authoritarian mentality.

I believe too many of the American public, politicians and mainstream media have been hoodwinked by the radical Right, the billion-dollar gun industry and the NRA. Yes, we are over 300 million individuals, but we are individuals who do not live in isolation but share a society.

On a personal note: I know what it is like to face a 22 revolver in the hands of a 9-year-old boy (reputed to have been disturbed) just two inches off my forehead (in the U.S. Virgin Islands in the early ‘70s). Believe me, I remember what the color “gun metal” looks like and know the sensation of feeling that all the blood has left my body. I want to see strong, sensible gun regulations.

I want the country of my birth to regain its sanity.

Beverly Bandler has worked in public affairs for some 40 years. Her credentials include serving as president of the state-level League of Women Voters of the Virgin Islands and extensive public education efforts in the Washington, D.C. area for 16 years. She writes from Mexico.

References on the topic of the Second Amendment:

Bogus, Carl T.  “The History and Politics of Second Amendment Scholarship: A Primer.” Chicago-Kent Law Review, Symposium on the Second Amendment, vol. 76, 2000. http://www.saf.org/LawReviews/BogusChicago.htm
_______  ed. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: The New Press, 2001.
Bruce-Briggs. B.  “The great American gun war.” National Affairs, Fall 1976. http://www.nationalaffairs.com/public_interest/detail/the-great-american-gun-war
Gehrke, Joel. “Justice Stevens: Second Amendment is ‘no obstacle’ to banning automatic weapons.” Washington Examiner, 2012-10-15. http://tinyurl.com/arynq8k
Goldstone, Lawrence.   Dark Bargain: Slavery, Profits, and the Struggle for the Constitution. Walker & Company (October 3, 2006) [See review by Gordon S. Wood.]
Green, Mark.  “The Emperor Has No Guns.” On the “right” to own guns: “The U.S. Supreme Court since 1939 has ruled that only state militias, not individuals, have such a right.” [This 2007 article is prior to the Court reversals of 2008 and 2010 decisions but has value.] The Huffington Post,  2007-04-18. http://www.huffingtonpost.com/mark-green/the-emperor-has-no-guns_b_46210.html
Labrunski, Richard.  James Madison and the Struggle for the Bill of Rights. Oxford University Press (June 20, 2008).
Liptak, Adam. “Justices Extend Firearm Rights in 5-to-4 Ruling. The New York Times, 2010-06-28. http://tinyurl.com/aqo72ht
McCoy, Drew R. The Last of the Fathers: James Madison & The Republican Legacy. Cambridge University Press (June 28, 1991).
Moyers, Bill and Michael Winship. “The Madness of the NRA.” ConsortiumNews, 2013-01-06. https://consortiumnews.com/2013/01/06/the-madness-of-the-nra/
Parry, Robert.   “The Right’s Dangerously Bad History.” ConsortiumNews, 2013-01-18. https://consortiumnews.com/2013/01/18/the-rights-dangerously-bad-history/
_______ “More Second Amendment Madness.” ConsortiumNews, 2013-01-14. https://consortiumnews.com/2013/01/14/more-second-amendment-madness/
_______ “The Right’s Second Amendment Lies.” Consortium News, 2012-12-21. https://consortiumnews.com/2012/12/21/the-rights-second-amendment-lies/
_______“The 2nd Amendment and Killing Kids.” ConsortiumNews, 2012-12-15. https://consortiumnews.com/2012/12/15/the-2nd-amendment-and-killing-kids/
_______ America’s Stolen Narrative. From Washington and Madison to Nixon, Reagan and the Bushes to Barack Obama. The Media Consortium; First edition (October 17, 2012).
Rakove, Jack N.  James Madison and the Bill of Rights. 1985. Pdf www.apsanet.org/imgtest/jamesmadison.pdf
_______ The Annotated U.S. Constitution and Declaration of Independence. Belknap Press of Harvard University Press; Reprint edition (October 22, 2012).
_______ Revolutionaries: A New History of the Invention of America. Houghton Mifflin Harcourt; First Edition first Printing edition (May 11, 2010).
_______ James Madison and the Creation of the American Republic (Library of American Biography Series). Pearson; 3 edition (April 2, 2006).
_______ The Federalist: The Essential Essays, by Alexander Hamilton, James Madison, and John Jay. (Bedford Series in History & Culture) Bedford/St. Martin’s; 1st edition (February 3, 2003).
_______Original Meanings: Politics and Ideas in the Making of the Constitution. [Winner of the Pulitzer Prize.] Vintage; 1st Vintage Books Ed edition (May 27, 1997).
_______ Declaring Rights: A Brief History with Documents. [Uses primary documents, supplemented by historical commentary, to tell the story of the birth of the Bill of Rights.] Palgrave Macmillan (October 15, 1997).
_______The Beginnings of National Politics: An Interpretive History of the Continental Congress. Random House USA Inc; 1st edition (August 9, 1988).
Schwartz, Bernard. The Bill of Rights: A Documentary History. Chelsea House, (1971), Vol. 2, pg 1026.
Sieczkowski, Cavan.  “Tim Donnelly, Republican Legislator, Says Guns are ‘Essential To Living The Way God Intended.” http://www.huffingtonpost.com/2013/01/18/tim-donnelly-god-guns-essential-republican_n_2505537.html?ir=Politics&ref=topbar
Spitzer, Robert J. “Lost and Found: Researching the Second Amendment.” 76 Chi-Kent Law Rev. 349,364 & tbl.1, 2000. http://www.saf.org/LawReviews/SpitzerChicago.htm
Stone, Geoffrey R. “Understanding the Second Amendment.” The Huffington Post, 2012-01-09. http://www.huffingtonpost.com/geoffrey-r-stone/understanding-the-second_b_2436549.html
Stout, David.  “Justices Rule for Individual Gun Rights.” The Supreme Court declared for the first time on Thursday that the Constitution protects an individual’s right to have a gun, not just the right of the states to maintain militias. The New York Times, 2008-06-27.  http://www.nytimes.com/2008/06/27/washington/27scotuscnd.html
Uviller, H. Richard, William G. Merkel.  The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Duke University Press Books; Text is Free of Markings edition (January 20, 2003).
_______“The Second Amendment in Context: The Case of the Vanishing Predicate.” Chicago-Kent Law Review, 2000. Social Science Research Network. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960155
Wills, Garry. James Madison (The American Presidents Series). Times Books; 1st edition (April 2, 2002).
_______ Whose Right to Bear Arms did the Second Amendment Protect? Boston: Bedford/St. Martin’s, 2000.
_______ “To Keep and Bear Arms.” The New York Review of Books, September 21, 1995.
Wood, Gordon S.  “Without Him, No Bill of Rights.” The New York Review of Books, 2006-11-30. http://www.nybooks.com/articles/19672
_______“Reading the Founders’ Minds.” The New York Review of Books, 2007-06-28.   http://www.nybooks.com/articles/archives/2007/jun/28/reading-the-founders-minds/