The Second Amendment’s Fake History
A numbness followed the latest mass shooting – this time at a community college in Oregon. Many Americans were frozen in futility as powerful political forces asserted that the Second Amendment prohibits any gun laws. But that claim is historically false.
False history continues to kill Americans, as we saw once again last week at Umpqua Community College in Oregon where a disturbed young man whose mother had loaded the house with loaded handguns and rifles executed nine people and then committed suicide – one more mind-numbing slaughter made possible, in part, by an erroneous understanding of the Second Amendment.
A key reason why the United States is frozen in political paralysis, unable to protect its citizens from the next deranged gunman and the next massacre, is that many on the American Right (and some on the Left) have sold much of the country on a false history regarding the Second Amendment. Gun-rights advocates insist that the carnage can’t be stopped because it was part of what the Constitution’s Framers designed.
Republican presidential candidates have been among the leaders in promoting this fake narrative, with surgeon Ben Carson saying the latest slaughter and all the other thousands of shootings are just part of the price of freedom. “I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away,” Carson said, noting that he had removed bullets from a number of gunshot victims.
But the Constitution’s Framers in 1787 and the authors of the Bill of Rights in the First Congress in 1789 never intended the Second Amendment to be construed as the right for individuals to take up arms against the Republic. In fact, their intent was the opposite.
The actual goal of the Second Amendment was to promote state militias for the maintenance of order in a time of political uprisings, potential slave revolts and simmering hostilities with both European powers and Native Americans on the frontiers. Indeed, its defined purpose was to achieve “security” against disruptions to the country’s republican form of government. The Second Amendment 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.” In other words, if read in context, it’s clear that the Second Amendment was enacted so each state would have the specific right to form “a well-regulated militia” to maintain “security,” i.e., to put down armed disorder and protect its citizens.
In the late Eighteenth Century, the meaning of “bearing” arms also referred to a citizen being part of a militia or army. It didn’t mean that an individual had the right to possess whatever number of high-capacity killing machines that he or she might want. Indeed, the most lethal weapon that early Americans owned was a slow-loading, single-fired musket or rifle.
Yet, one of the false themes peddled by some on the Right and the Left is that the Framers, having won a revolution against the British Crown, wanted to arm the population so the people could rebel against the Republic created by the U.S. Constitution. This vision of the Framers of the Constitution and members of the First Congress as some anarchists wanting an armed population to overthrow the government if the people weren’t happy with something is completely opposite of what was intended.
Whatever one thinks about the Federalists, who were the principal constitutional Framers and the leaders of the First Congress, they constituted the early national establishment – people like George Washington, James Madison, Alexander Hamilton and Gouverneur Morris. They feared that their new creation, a constitutional republic in an age of monarchies, was threatened by the potential for violent chaos, which is what European aristocrats predicted.
According to the idea of a representative democracy, the Framers sought a system that reflected the will of the citizens but within a framework that constrained the passions of democracy. In other words, the Constitution sought to channel political disputes into non-violent competition among various interests. The Framers also recognized how fragile the nation’s independence was and how domestic rebellions could be exploited by European powers.
Indeed, one of the crises that led to the Constitutional Convention in the summer of 1787 was the inability of the old system under the Articles of Confederation to put down Shays’s Rebellion in western Massachusetts in 1786-87. So, the Federalists were seeking a system that would ensure “domestic Tranquility,” as they explained in the Constitution’s Preamble. They did not want endless civil strife.
The whole idea of the Constitution – with its mix of voting, elected and appointed representatives, and checks and balances – was to create a political structure that made violence unnecessary. In other words, the Framers weren’t encouraging violent uprisings against the Republic that they were founding. To the contrary, they characterized violence against the constitutional system as “treason” in Article III, Section 3. They also committed the federal government to protect each state from “domestic Violence,” in Article IV, Section 4.
One of the first uses of the new state militias formed under the Second Amendment and the Militia Acts, which required able-bodied men to report for duty with their own muskets, was for President Washington to lead a federalized force of militiamen against the Whiskey Rebellion, a tax revolt in western Pennsylvania in 1794.
In the South, one of the principal reasons for a militia was to rally armed whites to put down slave uprisings. Again, the Second Amendment was meant to maintain public order – even an unjust order – rather than to empower the oppressed to take up arms against the government. That latter idea was a modern reinterpretation – or distortion – of the history.
The Constitution’s Framers were not some early version of Leon Trotsky favoring permanent revolution. The most radical-talking leader at the time, Thomas Jefferson, had little to do with either the Constitution or the Bill of Rights since he was serving as a diplomat in France at the time.
Yet, the revisionists who have transformed the meaning of the Second Amendment love to cite provocative comments by Jefferson, such as a quote from a 1787 letter criticizing the Constitution for its commander-in-chief provisions. Jefferson argued that violence, like Shays’s Rebellion, was to be welcomed. He declared that “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s [sic] natural manure.”
It is ironic, however, that Jefferson was never willing to risk his own blood as that “natural manure.” During the Revolutionary War when traitor Benedict Arnold led a force of Loyalists against Richmond, Jefferson, who was then Virginia’s governor, declined to rally the state militia in defense of the capital but rather fled for his life. Later, when British cavalry approached Charlottesville and his home of Monticello, Gov. Jefferson again took flight.
However, Jefferson was eager for Virginia to have a state militia of armed whites to crush possible black slave rebellions, another prospect that terrified him. As a slaveholder and a pseudo-scientific racist, Jefferson surely did not envision blacks as having any individual right to own guns themselves or to fight for their own liberty. Reflecting on blacks who fought bravely in the Revolution, Jefferson concluded that their courage was an illusion resulting from their intellectual inability to recognize danger.
Yet, whatever one thinks of Jefferson’s racism and cowardice, it’s a historical error to cite Jefferson in any way as speaking definitively about what the Framers intended with the Constitution and the Bill of Rights. He was not directly involved in either.
A Collective Right
The real history of the Second Amendment was well understood both by citizens and courts in the generations after the Constitution and Bill of Rights were enacted. For most of the years of the Republic, the U.S. Supreme Court interpreted the Second Amendment as a collective right, allowing Americans to participate in a “well-regulated Militia,” not an individual right to buy the latest weaponry at a gun show or stockpile a military-style arsenal in the basement.
It’s true that many Americans owned a musket or rifle in those early years especially on the frontier, but regulations on munitions were still common in cities where storing of gunpowder, for instance, represented a threat to the public safety. As the nation spread westward, so did common-sense restrictions on gun violence. Sheriffs in some of the wildest of Wild West towns enforced gun bans that today would prompt a recall election financed by the National Rifle Association.
However, in recent decades – understanding the power of narrative on the human imagination – a resurgent American Right (and some on the Left) rewrote the history of the Founding era, dispatching “researchers” to cherry-pick or fabricate quotes from Revolutionary War leaders to create politically convenient illusions. [See, for instance, Steven Krulik’s compilation of apocryphal or out-of-context gun quotes.]
That bogus history gave rise to the image of the Framers being wild-eyed radicals encouraging armed rebellion against the Republic. Rather than people who believed in the rule of law and social order, the Framers were contorted into crazies who wanted citizens to be empowered to shoot police, soldiers, elected representatives and government officials.
This false history was advanced particularly by the American Right in the last half of the Twentieth Century as a kind of neo-Confederate call to arms, with the goal of rallying whites into a near-insurrectionary fury particularly in the South but also in rural areas of the North and West. Many fancied themselves an armed resistance against the tyrannical federal government.
Southern whites brandished guns and engaged in violence to resist the civil rights movement of the 1950s and 1960s, when the federal government finally stepped in to end Jim Crow laws and racial segregation. In the 1990s, “citizens militias” began to pop up in reaction to the election of Democrat Bill Clinton, culminating in the Oklahoma City bombing of 1994.
While designed primarily for the weak-minded, the Right’s faux Founding history also had an impact on right-wing “intellectuals” including Republican lawyers who worked their way up through the federal judiciary under Ronald Reagan, George H.W. Bush and George W. Bush.
By 2008, these right-wing jurists held a majority on the U.S. Supreme Court and could thus overturn generations of legal precedents and declare that the Second Amendment established an individual right for Americans to own guns. Though even these five right-wing justices accepted society’s right to protect the general welfare of the population through some gun control, the Supreme Court’s ruling effectively “validated” the Right’s made-up history.
The ruling created a political dynamic in which even liberals in national politics, the likes of Barack Obama and Joe Biden, had to genuflect to the supposed Second Amendment right of Americans to parade around in public with guns on their hips and high-powered semi-automatic rifles slung over their shoulders.
What the Framers Wanted?
As guns-right activists struck down gun regulations in Congress and in statehouses across the nation, their dominant argument was that the Second Amendment offered no leeway for restrictions on gun ownership; it’s what the Framers wanted.
So, pretty much any unstable person could load up with a vast killing capacity and slouch off to a bar, a work place, a church or a school – even an elementary school – and treat fellow Americans as targets in a violent video game. Somehow, the right to life, liberty and the pursuit of happiness was overtaken by the “right” to own an AR-15 with a 30-or-100-bullet magazine.
When right-wing politicians talk about the Second Amendment now, they don’t even bother to include the preamble that explains the point of the amendment. The entire amendment is only 26 words. But the likes of Sen. Ted Cruz, R-Texas, another Republican presidential candidate, find the preamble inconvenient because it would undercut the false storyline. So they just lop off the first 12 words.
Nor do they explain what the Framers meant by “bear arms.” The phrase reflected the reasoning in the Second Amendment’s preamble that the whole point was to create “well-regulated” state militias to maintain “security,” not to free up anybody with a beef to kill government officials or citizens of a disapproved race or creed. (The Oregon gunman targeted practicing Christians; a previous gunman in South Carolina went after African-Americans in a church.)
Yet, after the massacre of 20 first-graders and six educators in Newtown, Connecticut, in December 2012, Fox News personality Andrew Napolitano declared: “The historical reality of the Second Amendment’s protection of the right to keep and bear arms is not that it protects the right to shoot deer. It protects the right to shoot tyrants, and it protects the right to shoot at them effectively, with the same instruments they would use upon us.”
At the time, the clear message from the Right was that armed Americans must confront the “tyrannical” Barack Obama – the twice-elected President of the United States (and the first African-American to hold that office) – especially if he pressed ahead seeking commonsense gun restrictions.
But Napolitano is simply wrong on the history. The Second Amendment was designed for states to maintain “security,” whether that meant putting down a tax rebellion in Pennsylvania, a slave revolt in the South or a Native American uprising on the frontier. One can disagree about the rightness of those actions by state or federal authorities, but the history is clear.
The Second Amendment was not designed to encourage violence against the government or – for that matter – to enable troubled individuals to murder large numbers of their fellow citizens.