The Strange Career of the Second Amendment -- Part I

Jennifer Jopp

THERE IS PERHAPS no more compelling contemporary example than the Second Amendment(1) to the U.S. Constitution of the ways in which Americans fail to understand the complexities and ironies of their own history. We live a in a society steeped in violence that is elided from much of our history. Until we come to terms with this violent history, we will have little hope of solving the contentious debate on the Second Amendment.

Both sides of the debate on the Second Amendment in its current form express extreme frustration and can hardly fathom that they live in the same country as their interlocutors. Liberal commentators embrace a powerful role for the federal government in policing and regulating access to firearms. They lament the day that the country came into the hands of the supporters of the National Rifle Association (NRA) who stockpile weapons and resist all attempts at gun regulation.

Conservative supporters of “gun rights” fume that liberals fail to understand the threat of overweening federal power and the dangers inherent in regimes that gain power by disarming the populace. They eschew any attempt at all to regulate gun ownership, background checks, or waiting periods as infringements on personal liberty out of keeping with “the right to bear arms” in the Constitution.

In a country with more weapons than citizens and daily news of gun violence, the issue could hardly be more central to our lives. And when in most places in the country, registering to vote requires a longer residency than the length of time required to purchase a gun, we have to reckon with a country steeped in the weapons of war.

There are a number of flashpoints both in the debate as it has emerged over the last few decades and in the location of much of the gun violence in our society: public schools, public lands and the military. As we will see, these focal points are connected to the issue itself.

Contemporary debate about the Second Amendment often revolves around the question of whether the amendment guaranteed an individual right to “keep and bear arms” or whether that right was contingent on service in the militia. Proponents of gun control measures believe that gun ownership in early America was linked to militia service, while gun “rights” advocates assert that the amendment pertains to an individual right to own weapons.

The language of the amendment itself — “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” — has been the source of countless debates and analyses of the meanings of the words, the placement of the commas, and the intention of its authors.

Many commentators rightly point out that, until relatively recently, both the courts and the general populace largely adhered to the idea that the language of the amendment connected gun ownership with militia service.

A great deal of the recent discussion of the issue focuses on the idea that the NRA has had an outsized influence on public understanding of the issue and that it was, until 1977, an organization of marksmen and hunters, many of whom advocated and supported gun control measures.(2) These commentators often note that the NRA’s subsequent avowal of an approach that brooks no restrictions on gun ownership is not in keeping with its own history.

There is no doubt that the 1977 NRA convention “revolt in Cincinnati” did, indeed, steer it in a visibly different direction, away from a focus on marksmanship and sportsmanship and towards a focus on opposition to all regulations on guns. That strategy had paid off handsomely: by dint of a heavily funded campaign of public advertising, the funding of scholarships, and the wielding of considerable financial clout, the NRA has succeeded in shifting both public opinion and academic debate.

Yet, such a framing of the issue ignores the much longer history of the fight over guns and their regulation that has existed since the beginning of the republic. Indeed, the debate over gun ownership has always been fraught with questions about access to power, about race, about citizenship, and about military service and its connections to ideas about masculinity.

Those who have been denied access to guns — free Blacks, new immigrants, and Native Americans — have often sought equal access to guns as a sign of their rights to participate in the larger community and as citizens. Many of those who have fought for the civil rights of African Americans and Native Americans have asserted their right to guns both as a means of self-defense and as a right of citizenship.(3)

The issues posed by the current participants in the debate — on either side — run along another fault line in our society: the question of the power of the central government as against that of the states and that of the people themselves.

To understand something of the complexity of this debate,  and its powerful emotional resonance, we need to look at both the historical context of the Second Amendment’s creation, as well as the subsequent history of the issue of guns, gun ownership, and gun regulation in the United States.

This history illuminates a central feature of our fractured society: we have long been two societies. Indeed, each side in the current debate has historical antecedents. The crooked paths along which each thread of the argument has traveled reveals something about the complexity of the tortured history of our republic.

There have always been voices for freedom that seek to make truer our proclamation that “all men are created equal,” just as there have always been forces fearing the central government and opposing the accomplishment of that dream. The forces of repression have gained more adherents in recent years: the post-Vietnam, post-Watergate world and the steady erosion of legitimacy of the offices of the republic have taken their toll.

In this context arises a growing belief in some quarters that the government has no right to regulate. That was never part of the position of those who believed that it was their own right to have weapons in their homes for personal protection. Indeed, much of the power that such possession constitutes is dependent on the idea that others — Blacks, immigrants — do not have that right.

Neither side of the debate willingly acknowledges the complexity of the issue, nor their own historical antecedents. The supporters of the militia-as-the-source-of-gun-rights view would then need to proclaim themselves the inheritors of the right-of-revolution stance of the early proponents of this approach, while those who advocate for an individual right to own weapons would need to see themselves as the descendants of those advocating a strong central government.

What is clear is that this history — connected as it has been from the beginning of this country — illuminates many of the fault lines in our society.

Despite the focus on the origins of the Second Amendment, the record indicates that the contours of our current debate emerged in the 19th century, sharpened over the course of the 20th century, and have hardened in our current toxic political culture. When we fight about guns, we are fighting about who we are.

Supporters of an individual rights view assert that colonial and early American society was no doubt well-armed, with all (white) male householders armed for hunting (and militia service). In this view, arms were widespread in society and in the hands of individuals themselves. Proponents of this view assert that the Revolutionary generation feared disarmament and clearly intended the Second Amendment to protect an individual’s right to have weapons in his own home.

Those who contend that such ownership was contingent on militia service point to the ubiquity of colonial militias. Those who support this view emphasize the need for colonial governments to muster the population as evidence that the populace was not as widely armed as one might assume. Supporters of this view note the existence of gun regulation in colonial and early national legislation.

What’s essential in trying to understand the historical parameters of the issue is to also remember the sweeping transformation of society that took place in the years between the Revolution and the first decades of the nation. This changed landscape often reworked inherited ideas.

Certainly, colonial legal codes contained all kinds of regulations concerning guns and gun ownership. These regulations did, indeed, often focus on militia service. For colonial society was an armed society, yet few homes had the kinds of weapons that effective militia service required. Thus, colonial governments often required their citizens to be available for military service and conducted searches of homes for evidence of the appropriate weaponry.

Probate records show that most men had the kinds of guns that were most useful in their daily lives in an agricultural society, not military weapons. Colonial militias were, therefore, not always well mustered and not always well armed. In addition, colonials tended to leave military service to take care of their farms and families. Thus, the romanticized model of the citizen soldier was often found wanting, even at the moment of its creation.

Colonial governments had little difficulty regulating guns and gun storage. Among colonial regulations were those requiring storing loaded weapons in a home, requirements to appear at militia musters for gun inspections, and those forbidding Blacks and Native Americans from the possession of arms.

Thus, revolutionary and early national era government gun policy encouraged ownership of militarily useful weapons, but did not eschew regulation of guns and access to them.

Militias were also — in the minds of many — a little too democratic, as their members chose officers and, like contemporary juries, the militia had an educative function in society. In the explosive climate of revolution, leaders often had occasion to rue power in the hands of a militia.

In this period, militia service itself was seen as a powerful way to protect a republican society from an overweening central government. This lesson was one drawn from both ancient and English history. Among the fears of the revolutionary generation was the pervasive fear of a standing army and the corrosive impact of wars fought by paid mercenaries.

The only way to protect a republican society was the militia, composed of the community of (white) able-bodied men who would defend their homes and families, not for pay but for love of country. From their reading of ancient history, the model of the citizen-soldier had particular resonance in the period of growing tension with the Crown. This man, modeled on the ancient Athenian story, could take up arms to defend his home and return to the life of the citizen without the corrosive contact with paid military service.

In the period before the break with Britain, as colonials were forging an ideology of revolution, they drew on a number of threads of thought. Revolutionary ideology contained ideas drawn from English opposition thinkers of the 17th century, their understanding of the history of ancient republics and the dangers they faced, and emerging Enlightenment thought.

As the subjects of the Crown became citizens of a new, republican society they drew on both an earlier understanding of the history of republics, such as that of the Florentine Republic, from which they drew lessons about the dangers of standing armies and the need for a virtuous population to defend liberty.

From their reading of English history, they drew particular lessons from the Glorious Revolution and the English Bill of Rights of 1689. In the aftermath of the Restoration, James II had used the Militia Act of 1664 and the Game Act of 1671 to disarm those “dangerous to the Peace of the Kingdom” and to forbid those who did not have “Lands and Tenements of clear yearly value of one hundred pounds” from owning guns.(4)

Among the concessions won from William and Mary upon their ascension to the throne was the provision that “Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.”

Thus, English law articulated an individual right to own weapons as distinct from owning a weapon for militia service. In his magisterial Commentaries on the Laws of England, William Blackstone saw the Bill of Rights as providing “the right of having and using guns for self-preservation and defense.” English case law, too, took this view: the 1744 case of Malloch v. Eastly held that “a man may keep a gun for the defense of his house and his family.(5)

They drew, too, from emerging Enlightenment thought about the new basis for political sovereignty. These threads stood in uneasy juxtaposition to each other, and the fundamental contradictions they posed were not evident in the period in which opposition — first to Parliament and then, in the wake of Thomas Paine’s incendiary Common Sense, to the king himself — helped the colonials to forge an ideology of revolution.

The charges laid at the feet of the king in the Declaration of Independence speak to the grievances of the colonials and the ways in which they understood the world in which they lived.

In the revolutionary era and the process of state constitution making, these ideas were further shaped by the experiences of war. As men and women, young and old, slave and free were drawn into a battle for freedom and began to challenge authority, the emerging elite feared an “excess of democracy.”

The leaders of the revolutionary movement needed the support of wide sectors of the population if they were going to achieve victory against the most powerful military force in the world at the time; garnering the support of the people was central to this project. Yet, ideas have a tendency to grow and expand: the genie of social deference could not be put back in the bottle and both urban and rural peoples demanded change.

As George Washington lamented, “there are combustibles in every state.” In the cities, “mechanics were demanding political democracy” while the people in the countryside, too, demanded a new order.(6) Though the leaders of this struggle for “home rule” were among the wealthiest men in the colonies, their movement brought “laborers and seamen, as well as small farmers” into the fold “by the rhetoric of the Revolution, by the camaraderie of military service, [and] by the distribution of some land.”(7)

War required military service, and men were pressed into service in the colonial militias. Despite the contemporary view of the colonial populace as an armed people willing to defend themselves and their land, the historical record illustrates the lengths to which many colonial governments were required to go to fulfill their militia quotas. Laws, for example, required all men between 16 and 60 to serve and those who failed to show up were jailed.

As the war dragged on, the privations of the poor became more pressing and the privileges of the wealthy more difficult to tolerate. The radical proposition that sovereignty should rest with the people took root in the newly opened arenas for political discussion and pamphleteering.

John Adams lamented that “new claims will arise… and every man who has not a farthing will demand an equal voice with any other.”(8) From all corners came calls for access to voting rights, more responsive representation, and other egalitarian demands.(9)

The war itself and the eventual necessity to create a standing army, one professionally trained by the French, undermined the belief in the power of the militia to prevent the destruction of democracy. The Constitution, as many scholars have noted, attempted to tame what elites had come to see as excesses of democracy and the dangers of popular uprisings in several states.

Under the previous Articles of Confederation, states were required to maintain their own “well regulated and disciplined militia, sufficiently armed and accoutered” with “a proper quantity of arms, ammunition and camp equipage.” The Confederation Congress was permitted to requisition state militias only for the “common defense.” Yet state legislatures could refuse to comply. And the Confederation Congress could not declare war, raise an army, or engage in any kind of military operation without the consent of nine of the 13 states.

Under the new Constitution, by contrast, a powerful new central government controlled the ability to conduct war, raise an army and call out state militias without the consent of the state governments. The new president would also be Commander in Chief and could call the militias into service to “execute the laws of the Union, suppress Insurrections and repel Invasions.”

Many people feared the newly powerful government under the Constitution, and for many only the promised amendments in the form of a Bill of Rights brought reluctant support for ratification. The wording of these amendments was hammered out in numerous state conventions, with the final drafting done at the constitutional convention.

Provisions of contemporaneous state constitutions illuminate the wording of what has come to be called our Second Amendment. The Massachusetts constitution of 1780, for example, asserted that “the people have a right to keep and bear arms for the common defense,” while that of Tennessee in 1796 stated, “[T]he freemen of this State have a right to keep and bear arms for their common defense.” Such provisions lend support to a communal rights understanding of the second amendment to the national constitution.

Yet Kentucky’s constitution declared that “[T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned,” while that of Vermont similarly noted that “[T]he people have a right to bear arms for the defense of themselves and the State.”

Many of the state ratifying conventions issued calls to Congress for a Bill of Rights. Among the demands was that from New Hampshire that “Congress shall never disarm any citizen unless such as or have been in Actual Rebellion.”

These various provisions suggest that there are two potentially interrelated issues at work: one is the idea that a free people should have a militia, and the other is that the people should possess firearms. As Pennsylvania’s state constitution of 1776 noted, “the people have a right to bear arms for the defense of themselves and the state” and the “military should be kept under strict subordination, to, and governed by, the civil power.”

Virginia’s differently phrased clause reads “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.”

The Second Amendment, then, contains both these ideas; its “militia component and its right to bear arms recognition have in fact different origins and different theoretical underpinnings.”(10) As David Hardy notes, “by 1780 there were three state models for dealing with the question of popular armaments: the Virginia …model, stressing a well-regulated militia; the Pennsylvania … model, stressing an individual right to bear arms, and the Massachusetts …model, stressing a right both to keep and bear arms, but only for the common defense.”(11)

The classical republican tradition gave voice to the importance of a militia to a free state, while Enlightenment ideals espoused an individual right to own and carry arms. Incorporating both these ideas in uneasy juxtaposition, the amendment sought to balance competing political forces.

The phrasing that today proves so difficult to comprehend raised few questions at the time. The drafters of what came to be the Second Amendment feared the newly-enhanced power of the federal government to call forth the state militias without the express permission of the states. The use of the state militias to suppress domestic insurrection — in the aftermath of the Whiskey Rebellion, the Fries Rebellion, and the North Carolina Regulator Movement — was no small concern.

The Second Amendment — like its partners in the Bill of Rights — was not seen as a limiting state power until the late 19th century nationalization of the amendments through the incorporation of the Due Process Clause of the Fourteenth Amendment; before then, the amendments were understood to be restrictions on federal power alone, which was the locus of the fears of many.

The militia statutes of the new states — often revisions of colonial laws “constituted the largest body of laws dealing with firearms.”(12) These provisions show that the states were not reluctant to use broad police powers to regulate all aspects of weapons use: rules regarding use, storage, ownership and access.

One of the other issues addressed by political leaders in this era was the lack of a sufficient number of weapons for all of the men who should be militia members. As Washington noted in his first annual message to Congress, “A free people ought [to]…be armed…” Yet, several surveys of available weapons found severe shortages: a 1803 survey found only 235,831 guns for 524,086 militia members.(13) Initial attempts to spur domestic arms manufacturing did little to correct the problem.

The rise of a commercial market economy and the dominant form of political economy by the early 19th century helped to contain some of the “most dangerous possibilities of the age of democratic revolutions.”(14) The transformation to an American society wrought by these changes again changed the terrain on which the issues of guns and gun ownership were debated.

The rapid transformation of the United States in the period from the late 18th century to the first decades of the 19th century spurred and intensified developments long underway. The invention of the cotton gin and the growing market for American cotton in England drove a recommitment to slavery and a tightening of the hold of investments in land and people. The arrival in the United States of white planters and their slaves fleeing the Haitian Revolution also intensified this trend.

The growing demand for land and the post-Revolutionary removal of a barrier to territory in the west — as the Proclamation Line of 1763 had been — unleashed a flood of whites moving into the lands of indigenous peoples. As whites seized lands, marked and surveyed them and sold them for profit, the native peoples met violence at the hands of armed whites.

These armed men were often settlers engaged in “deadly irregular warfare against the continent’s indigenous nations,” and the persistence of all forms of irregular warfare even after the establishment of a professional army “most marks U.S. armed forces as different from other armies of global powers.”(15)

The development of American manufacturing, as well as an emerging banking system and new infrastructural development, gradually led to the production of larger numbers of weapons. New technology, too, meant that the weapons now produced were more lethal than had been earlier muskets and rifles.

It was in this time period that new regulations on guns appeared, as did an argument more forcefully favoring an individual rights interpretation. “Legal thinking about the right to bear arms, the militia, and the idea of self-defense” was altered in the new world of the early 19th century.(16) New technology produced smaller weapons, weapons that could now be concealed on one’s person. In the new world of greater economic, social and geographic mobility, such arming with personal weapons produced a deep anxiety and raised the specter of deeper social problems.

[The second half of this article, in the next issue of Against the Current, will explore the evolution of the “gun rights” debate in the context of the struggles around slavery and beyond.]

Notes

  1. The title of this essay is a nod to C. Van Woodward’s classic The Strange Career of Jim Crow, a work that explored the relatively “new” history of segregation in the post-Reconstruction south and, in so doing, discussed the discrepancy between the history of the period and the way in which it is commonly understood.
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  2. See, for example, Nicholas Kristoff, “Let’s Talk about the N.R.A.” in The New York Times, Sunday, November 4, 2018.
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  3. There are countless examples; Ida B. Wells, as one example, asserted that Black men — in the face of a violent campaign of lynching throughout the South — should arm themselves for their own defense.
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  4. Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America, (New York and London: W.W. Norton & Company, 2011), 101.
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  5. Winkler, 102.
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  6. Howard Zinn, A Peoples’ History of the United States, 1492-Present (New York: Harper Collins, 1980), 62.
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  7. Zinn, 85.
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  8. Adams to James Sullivan in Charles Francis Adams, ed., The Works of John Adams (Boston: 1850-1852), volume 9, 378.
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  9. The People the Best Governors, or, a Plan of Government Founded on the Just Principles of Natural Freedom (n.p., 1776), 13.
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  10. David T. Hardy, “The Second Amendment and the Historiography of the Bill of Rights” Journal of Law and Politics, v. 4 (1987), 1-67.
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  11. Ibid.
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  12. Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford: Oxford University Press, 2006), 27.
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  13. Michael Bellesiles, “The Second Amendment in Action” in The Second Amendment in Law and History, (New York: The New Press, 2000), 64.
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  14. Seth Cotlar, Tom Paine’s America: The Rise and Fall of Transatlantic Radicalism in the Early Republic (Charlottesville and London: The University of Virginia Press, 2011), 159.
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  15. Roxanne Dunbar-Ortiz, “What White Supremacists Know.” Published on Portside on November 18, 2018.
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  16. Cornell, Well-Regulated, 139; Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York, 2005).
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January-February 2019, ATC 198