I don’t know much about gun control as a public policy issue, so I will avoid stepping into that bucket. But it drives me crazy, especially in the aftermath of the Tucson shootings, to hear gun-advocates portray the Founders of the Republic as fans of unrestricted gun ownership. Such statements are not well grounded in historical fact.
When charged with governing, the Founders showed showed no sanctity to gun ownership . From its first days as a proto-national government, the 2nd Continental Congress advised States to disarm individuals suspected (but not convicted) of disloyalty and to impress the arms of those living in areas where arms might fall into British hands. George Washington’s first action of 1776 was a campaign to confiscate the private arms of the citizens in Queens Co., New York. Different local militias in New Jersey confiscated arms from African-Americans and inhabitants of the vulnerable shoreline. These were not actions taken against a handful of traitors, but against large groups of people. The public's need to wage a war repeatedly trumped an individual's private property right to own a gun.
A decade later, as the Federalists attempted to make the Constitution more attractive to a skeptical public, they added a Bill of Rights (ten amendments to the Constitution) to lessen fears that the Constitution would become "an engine of tyranny". The Founders wrote the 2nd Amendment so that "a well regulated militia" (the key phrase in the 2nd Amendment), properly armed and governed by officers, would exist to resist potential federal encroachment. The 2nd Amendment spoke to the Colonial experience of British soldiers forcing tax collection on localities that had no voice in the creation of the tax.
The Federalist Papers, written by the Founders to explain the benefits of the Constitution, discuss basic rights of American citizens: fair treatment before the law, the right to vote, freedom of religion and the press, etc. To the degree firearms are addressed, the Federalists speak to the right of Americans to organize into militias to resist federal encroachment. Federalist #29 declares “it is a matter of the utmost importance that a well-digested plan should be adopted for the proper establishment of the militia” and Federalist #46 discusses the strength of a militia "with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties." However, The Federalist Papers—85 essays and 200,000 words long—never speak to an individual’s right to own firearms.
Based on actions taken during their presidencies, Washington and Adams had no qualms with seizing private property for a perceived public good. Washington's confiscations of arms and property from the "Whiskey rebels" of Pennsylvania and Adams's impressments under the Alien and Sedition Acts demonstrate this. Even Jefferson, who counseled “the government is best that governs least,” opted to limit the 1st Amendment when he championed "salutary coercion" of a press he believed overly partisan and irresponsible.
Though deeply suspicious of Federal over-reach, the Founders were not libertarians in any modern sense of the term, certainly not when governing. They supported a well regulated militia, but were ambivalent to private gun ownership when gun ownership ran up against a reasonable "public good" argument. Individual families often owned a rifle or two (the muzzle-loaded rifles of the day fired only one bullet and took two minutes to re-load) but it was the responsibility of local government to keep the really dangerous stuff—casks of gun powder, artillery, etc.—under guard in public magazines.
Even the most powerful men of the day did not keep private stores of dangerous weapons (with the exception of privateers battling foreign enemies at sea). Washington’s estate at Mt. Vernon, for example, had nothing more dangerous than a small number hunting rifles. People like John Hancock and Robert Morris purchased huge quantities of war materials, and then immediately turned them over to state and local governments.
When it comes to gun control, argue whatever position you want, but it is inconsistent with the historical record to believe that the Founders supported the private ownership of firearms capable of killing dozens of people.
You're missing something. The constitutional author that we should be paying the most attention to on an individual right to arms isn't the guys from 1792 (passage of the BoR) and prior. It's John Bingham, author of the 14th Amendment of 1868.
ReplyDeleteFor a complete picture see the book "The Bill Of Rights" by Yale law professor (and very liberal) Akhil Reed Amar. Amar's book is a major reason why the US Supreme Court ruled in 2010 (McDonald v. Chicago) that the state and local governments are restricted by the 2nd Amendment.
In short, the Civil War and the 13th Amendment solved the problem of slavery, but not racism. The 14th was part of an attempt to address the latter. In order to do so, they had to overturn the 1856 US Supreme Court decision in Dred Scott, which said in clear language that the US had always been a racist nation, that racist laws were supported by members of the Founding Fathers (true, as you've pointed out!) and that therefore racist laws were OK. In a passage from Dred Scott, the court described what would happen otherwise, if blacks had the "privileges and immunities of US citizenship" (a phrase used over 30 times in Dred Scott):
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For if they [blacks] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. [emphasis added]
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Jim again: pay attention to that last bit above, and then compare the above text to the opening paragraph of the 14th Amendment:
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Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Do you see it yet? John Bingham took the language from Dred Scott regarding "privileges and immunities" and turned it on it's head. He used the language of Dred Scott against it. First blacks are declared citizens, and then "no state shall abridge the privileges and immunities of US citizenship" - a term that the court in Dred Scott had clearly and carefully defined.
(CONT.)
It gets better. Militia service is a "political right" akin to jury service and voting. Well guess what? In 1868 blacks didn't yet have political rights. The right to vote and the political rights that came with it didn't kick in until the 15th Amendment. In 1868 blacks had the same civil rights (per the 14th) as white women, but like white women no political rights (yet).
ReplyDeleteThis de-coupled the civil right to personal self defense from the political right to militia service.
Of course, the courts didn't exactly enjoy being overturned. In the 1876 final decision in US v. Cruikshank the US Supremes pretended not to know what "privileges and immunities" are. This case was being cited as late as 2010 by Alameda County California in the Nordyke case, in which Alameda was defending it's ban on gun shows. This was particularly sickening given that the Cruikshank case legalized lynching for generations. Go study the "Colfax Massacre" - the Cruikshank case was about what happened to the murderers there. See also the book "The Day Freedom Died" by Charles Lane, 2008, cited positively in the case of US v. Heller (also 2008).
Upshot: your case that the Founders of 1792 and prior weren't all that strong on guns isn't entirely accurate, but there is some evidence to support it. It doesn't matter because the groundwork under the entire BoR (not just the 2nd Amendment) shifted in 1868, which is what Amar's book is about.
"An Open Letter to 1st Amendment Absolutists
ReplyDeleteI don't know much about the whole free speech issue, but it drives me crazy when, especially after the whole WikiLeaks thing, to hear speech advocates portray the Founders of the Republic as fans of unrestricted use of speech."
You said that "a well regulated militia" is "the key phrase in the 2nd Amendment." You're wrong. The key phrase would be: "shall not be infringed" with the right of the "people" and the "militia" to keep arms coming next in importance, jointly defining what is not to be infringed. Lastly: "...being necessary to the security of a free State" gives us a reason for all of this. So while this goes a step further than the 1st amendment, it is probably the least important part here. If the rights of "the people" aren't important here, how can they carry any weight in the rest of the amendments?
You said: "Washington’s estate at Mt. Vernon, for example, had nothing more dangerous than a small number hunting rifles." You really kicked yourself here! I would guess that those were Kentucky Rifles, but in any case, it was small personal caches of hunting rifles that we used to win the revolutionary war. So what could possibly have been more dangerous? A small collection of of AR-15's and sniper rifles would be a modern equivalent to Washington's hunting rifles.
I suggest this article as a counter to yours: "Why Liberals Should Love The Second Amendment" http://www.dailykos.com/storyonly/2008/4/21/19133/5152
Here's a few questions I've got.
ReplyDeleteBecause the founders were slave owners, does that mean that we should have always kept slaves? Of course not. So if they disarmed black people back in the day, I hardly see that as a compelling reason for gun control today, in fact it seems like the opposite.
Also, if the 2nd amendment is really about militias (meaning the national guard which wasn't invented until the 1900's), why on earth would we need an amendment to guarantee that they wouldn't be disarmed? Why don't we also have an amendment saying that we can't disarm the navy, or the army too?
My thanks to the people who responded to my 2nd Amendment blog, a few thoughts:
ReplyDeleteFirst, while I don’t follow all of your arguments and certainly am tempted to argue a couple of them, I do think you make some reasonable points. Clearly, gun control is complicated public policy question, and one on which I have no pretensions of expertise. I am aware of the body of case law that affirms a right to private gun ownership. And, for the record, I am a gun owner (I own a rifle and enjoy target and trap shooting), as does my teenage son.
However, I remind you of the stated purpose of my blog, taking on the several broad and broadly incorrect statements made in recent public debate about the Founders as strong supporters of private gun ownership. The question I framed is whether or not the Founders, when charged with governing, showed any great fidelity for private gun ownership, particularly when they perceived private gun ownership might in some way run contrary to a public interest. My research is not exhaustive for every locality and situation but I have been researching the American Revolution at the local level for twenty years and have a 5,500-entry database of local war-related events. In my research, I have come upon numerous instances of the Founders confiscating weapons from large numbers of people—not just a few Tories, criminals and slaves. Further, to the degree 2nd Amendment issues are discussed in the Founders principal explanatory documents on governance, the Federalist papers, it is discussed in the context of a public militia, not private gun ownership. Surely if the Founders believed private gun ownership was a particularly sacred right, they would have devoted some ink to the issue somewhere in these 85 essays?
Anyway, there’s nothing more tedious than long tit-for-tats in blogs, so this is my only reply on the topic. I cede the floor to you if you’d like the last word, and hope you’ll come back and read future entries.
To the idea that the Founders were always talking about militias, and not individuals: They often used phrases and words like "the people," "peaceable citizens," "free men," "Americans," "citizens," "the people at large, and "American people" when referring to ownership of arms. These terms have nothing to do with militias or the state.
ReplyDeleteSurely if the Founders believed that private gun ownership was not a right, they would have excluded "the people" from the Second Amendment. I believe that the fact "the people" are listed in that sparsely worded amendment shows exactly how important they thought it was.
You may or may not have seen these quotes during your research, but I believe that they counter your claim that the Founders never referred to individual arms ownership. They're copied out of context, but there is a link to the source:
http://www.reddit.com/r/guns/comments/f8kpx/for_those_who_think_the_founding_fathers_of_the/
Thanks Mike. Once again a very well written, well thought out posting. And clearly one that has opened considerable dialogue. Please keep them coming.
ReplyDeleteRegarding this very sensitive topic, most telling for me is the fact that, as you stated, the Constitution is a colonial document written at a time when rapid repeat assault rifles, and extended magazines where the stuff of fantasy. The Constitution has remained relevant for more than two centuries because of its ability to keep stride with an ever evolving society. It is now time to re-examine the Second Amendment relative to these changes in our society and, more importantly, the advances in arms development. This re-evaluation is paramount to insuring the safety and well being of the American people, which was, and remains, the alpha goal of the Constitution.