Wednesday, July 27, 2016

A Brief History of the Second Amendment


Mass shootings have become so prominent in American society today that it can have a desensitizing effect on us.  Back when I was younger, when mass shootings were a relatively rare occurrence, I remember they provided occasion for prolonged national grief and soul-searching.  I remember the Columbine shooting, back in 1999.  The traumatic, soul-searching effect it had on the nation was profound.  These days, however, mass shootings have occurred in such rapid-fire succession (no pun intended), that we no longer have time to grieve, much less deeply reflect on what it all means.  They have become, tragically, a part of the "normal" reality of American life.

In response to these shootings, debate rages between advocates of gun control and those who cling more tightly to the Second Amendment, and the supposed rights it gives people to own guns.  I've gotten in a couple of these kinds of arguments, and they always seem to end in stalemate.  Advocates of gun control cite horrifying statistics about the number of Americans killed by guns vs. the rest of the developed world, the number of children who accidentally shoot themselves with guns, and, of course, the increased prevalence of mass shootings.  Advocates of the Second Amendment (or, as I will show, a relatively recent interpretation of the Second Amendment) cling ever more tightly to their right to keep and bear arms, believing this right to be enshrined in our American Scripture--the United States Constitution.

These arguments about gun control often feel like another argument I've occasionally had--about the meaning of the Bible.  As someone who grew up an in evangelical church, I am keenly aware of a particular worldview in which a sacred text is believed to be the ultimate arbiter of absolute capital-T truth.  Not only that, but there seems to be a kind of consensus about what the Bible ultimately means.  That worldview began to unravel, for me, in college, when I began to study the cultures and contexts of when the Bible was written.  I began to see it, not a a perfect description of ultimate Truth, but rather as a very interesting collection of documents reflecting some fascinating ideas of ancient Near Eastern cultures.  For me, understanding what the Bible means involves patient, good old-fashioned research.

And so, I think it must also be with the Second Amendment.  It feels intellectually wrong to assume that, just because a particularly vocal segment of American society interprets the Second Amendment one way--that is therefore the correct way.  Instead, I would like to approach the Second Amendment (and, by extension, the whole U.S. Constitution) not as sacred American Scripture, but as a very interesting document reflecting some fascinating ideas about 18th century American culture--for it most certainly is a product of that time and place.  In my quest for such an understanding, I've just read a new book called The Second Amendment: a Biography by Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, who has written extensively on law and U.S. policy.

In this book, Waldman does something extraordinary.  Rather than arguing about the how the Second Amendment applies to modern society, he does what any good researcher does--he dives deeply into the history of the Second Amendment, asking questions like: What did the Second Amendment mean in its original context?  What events and circumstances informed the ideas of the "Founding Fathers" of America?  And how have ideas and views on the Second Amendment changed over time?  The insights he finds are fascinating, and add several more layers of complexity to the current debate about gun control.

My purpose with this post is to give a book report on Waldman's fascinating book, and to share some insights from history on that most controversial of contemporary topics: The Second Amendment.  My goal is not necessarily to win arguments, but to give some food for thought that might make for better-informed arguments.  Here we go.

The Second Amendment is one sentence.  It reads in its entirety:

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.

Waldman explains: "For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard.  Then, in 2008, the U.S. Supreme Court upended two centuries of precedent.  In the case of District of Columbia v. Heller, an opinion written by Justice Antonin Scalia declared that the Constitution confers a right to own a gun for self-defense in the home.  That's right: the Supreme Court found there to be an individual right to gun ownership just a few years ago."

How did we get there?

The Original Context: Militias, Standing Armies, and The American Revolution

The first battles of the American Revolution were fought between state militias and the British Army.  Militias were comprised of farmers and innkeepers, ordinary citizens.  Waldman explains: "Militias were military forces drawn from the citizenry--largely the yeoman farmers who owned property and worked their own land...Men from sixteen to sixty were required to join a company, and train intermittently."

In contrast to these militias was that most feared of forces, epitomized by the British redcoats...the standing army.  Give a king an army, it was thought, and he would find a war to fight...The American colonists saw the army as tyranny in the making.  The Spring of 1775 "marked the high point for militias, and for the vision that a citizen force--of men pulled away from home, carrying their own weapons--could match the professionalism of a trained fighting force.  For a few months, at least, that seemed plausible.  Reality soon intruded."

In the face of the reality of a well-trained and well-armed British Army, general George Washington deemed it necessary to go ahead and form an army, which became known as The Continental Army.  In September of 1776, Washington wrote: To place dependence upon Militia is, assuredly, resting upon a broken staff.  Men just dragged from the tender scenes of domestic life; unaccustomed to the din of arms; totally unacquainted with every kind of military skill...[are]timid and ready to fly from their own shadows.  Besides, the sudden change in their manner of living...produces shameful, and scandalous desertions...Certain I am, that it would be cheaper to keep 50,000 or 100,000 men in constant pay than to depend upon half the number; and apply the other half occasionally by militia.

After the war, Congress disbanded the Continental Army, but state militias remained.  They were deemed an important safeguard against the tyranny they had just overthrown, represented by a king and a standing army.  And so, it is in this context that we must understand the Second Amendment, with its awkward wording:

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 framers of the constitution had something quite specific in mind when they wrote this: a well-regulated militia, authorized by the government, to perform military functions.  You will notice that the amendment says nothing about private gun ownership for self-defense, either pro or con.  The Amendment was referring to the right (and, in many cases, civic duty) to own a gun for militia purposes.

What constituted a militia in those days? That question was put to the test in 1791, with the infamous Whiskey Rebellion: "Western Pennsylvania farmers rebelled and took up arms.  President Washington decided to make clear this Whiskey Rebellion was not the 'well-regulated militia' he had in mind.  He mobilized fifteen thousand militiamen, with [Alexander] Hamilton at their head, to restore order.  Most of the federal militiamen lacked guns of their own, and the national government had to buy them.  By the time the federal posse showed up, most of the whiskey rebels had scattered.  With a show of federal force, the new government established its authority."

The following year, Congress passed the Uniform Militia Act of 1792.  The new federal law required "each and every free and able-bodied white male citizen" between eighteen and forty-five to enroll in a state militia.  More significantly, it required them all to buy a gun...The public largely ignored the law, however.

Meanwhile, Waldman explains, "Guns abounded.  The western frontier, especially, experienced a non-stop series of raids and reprisals with Indian tribes and their French allies.  There were few restrictions on hunting game.  In towns and cities, no police forces had been established to protect public order...Yet at the same time, gun regulations were common...Boston made it illegal to keep a loaded gun in a home.  Laws governed the location of guns and gunpowder storage.  New York, Boston, and all cities in Pennsylvania prohibited the firing of guns within city limits.  States imposed curbs on gun ownership.  People deemed dangerous were barred from owning weapons."

The question of when, and for what purpose, guns could be used (hunting, self-defense) was largely left up to state and local governments.  From a federal government/Second Amendment perspective, the only defensible right was the right to own a gun for militia purposes.  Unfortunately, as time went on, the militia system crumbled.  By the time of the Civil War, Armies (not militias) were the main fighting forces: "The day Fort Sumter fell, the U.S. Army comprised sixteen thousand men.  By the next year, it had 700,000.  In 1863, Congress authorized a draft with three-year enlistments.  Nearly 200,000 soldiers were African American.  An army, not militias, would grind to victory."

In 1903 Congress passed the Dick Act.  It created what we know as the National Guard, spending federal funds to train part-time soldiers...The 'standing army' so widely feared is the United States Army, created in its modern form during World War I."

Early Court Cases and Gun Laws

Before the landmark 2008 Supreme Court decision that changed/re-interpreted the original meaning of the Second Amendment (more on that in a moment), the issue reached the Supreme Court four other times: United States v. Cruikshank (1875), Presser v. Illinois (1886), Miller v. Texas (1894), and United States v. Miller (1934), with the latter being the most direct and straightforward articulation of the Court's position.

United States v. Miller occurred in the aftermath of the first federal gun legislation, the National Firearms Act of 1934.  It was an FDR-era law with the purpose of cracking down on gangsters: "The law imposed a heavy tax on the weapons used most prominently by gangsters and familiar to any moviegoer of the time.  Machine guns and sawed-off shotguns had to be registered, and could not be transported across state lines."  A bank robber named Jack Miller, part of a notorious crew called The O'Malley Gang, was arrested with a sawed-off shotgun, having just crossed state lines.  The case went to the Supreme Court, which ruled against Miller.

Justice James Clark McReynolds wrote for a unanimous court that without evidence that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency or a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.  Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use would contribute to the common defense...With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made.  It must be interpreted and applied with that end in view."

In 1968, in the wake of the political assassinations of Martin Luther King Jr. and Robert F. Kennedy, Congress passed the Gun Control Act of 1968, which "established a federal licensing system for gun dealers and banned the importation of military-style weapons.  It also prohibited certain classes of people deemed dangerous--felons; fugitives; people dishonorably discharged from the military--from purchasing or possessing guns."

The 1981 assassination attempt on Ronald Reagan would lead, over a decade later, to the Brady Bill, named after Reagan's wounded press secretary James S. Brady, which required a background check and waiting period before buying a gun.  In the 1990s, under Clinton, congress passed an assault weapons ban, as part of a larger crime bill.  The consensus seemed to be that both states and the federal government could create gun control laws so long as they did not violate gun ownership for militia purposes, which was an increasingly archaic concept.  On the relevance of state militias to modern society, Waldman makes the humorous but insightful point: "Like using bleeding for medical care, wearing wigs, and keeping slaves, many practices and common understandings of the Founding Era are hard to fathom, or translate, today."

But things were about to change.

The Rise of the NRA and the Judicial Right

The National Rifle Association (NRA) was founded in 1871 by militia men and army veterans for the purpose of training American men to shoot safely and accurately.  General Ambrose Burnside, the namesake of "side burns" was its first president.

In the 20th century, the focus of the NRA, until the 1960s, was on hunting and sports shooting, not paramilitary actvity.  For example, the organization did not oppose 1934 National Firearms Act.  Amidst turbulent 1960s, as riots and protests raged throughout the country, the focus changed to more of a self-defense position.   Then, one weekend in 1976, the NRA board fired eighty staff members.  Gun group veterans still call the NRA's 1977 annual meeting the "Revolt at Cincinnati."  Neal Knox, editor of Gun Week magazine, became the NRA's new head lobbyist.

Waldman explains, "The NRA's new leadership was dramatic, dogmatic, and overtly ideological."  This was part of a larger shift to the right in American politics, as evidenced by the rise of Christian fundamentalism, the Moral Majority, the 'Tax Revolt' in California, and the election of Ronald Reagan.  In 1980, the NRA gave Reagan its first-ever presidential endorsement.

The NRA moved into new headquarters.  Oversized letters on the facade no longer referred to marksmanship.  Instead, the wall of the building's lobby was emblazoned with the Second Amendment.  Visitors might not notice that the text on the wall is not quite accurate.  It reads:

"...the right of the people to keep and bear arms shall not be infringed."

The first half--the part about the well regulated militia--was edited out.

"Second Amendment fundamentalism was rising," Waldman writes,  "But courts, scholars, and the legal community with rare unanimity for much of the century had agreed that the Second Amendment did not mean what the camouflage-clad attendees at Charleton Heston speeches said it did.  There was no more settled view in constitutional law that that the Second Amendment did not protect an individual right to own a gun.  After all, the Supreme Court had considered the matter four times."

Around this time, "a tsunami of scholarship and pseudo-scholarship that argued the traditional view--shared by courts and historians--was wrong...a squad of lawyers and law professors began to churn out law review submissions at a prodigious rate...From 1970s to 1989, twenty-five articles adhering to the collective rights view were published (nothing unusual there), but so were twenty-seven articles endorsing the individual rights model.  However, at least sixteen of those articles--about 60 percent--were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations."

"It's importatnt to note who did not change their view of history: historians," Waldman explains, "Those who spent years exploring the history, context, and meaning of the Founding Era continued to conclude, with few exceptions, that the Framers' concern about militias had animated the Second Amendment...The revisionist wave came not from historians but from lawyers, and law professors.  'Law office history' describes the practice of plucking facts or quotes out of context to fit a legal review articles are not subject to peer review.  Students choose and edit them."

Under Ronald Reagan, conservative judge Antonin Scalia was appointed to the Supreme Court.  Under George W. Bush, conservative judges Samuel Alito and John Roberts joined Scalia, giving the Supreme Court a 5-4 conservative majority.

Heller v. District of Columbia 

The 2008 court case Heller v. District of Columbia reversed over two hundred years of legal precedent regarding the Second Amendment.  Dick Heller, a security guard at the Thurgood Marshall Federal Judiciary Building, wanted to bring his work revolver home to his high-crime neighborhood, but was barred by a D.C. gun law.  The case went to supreme court, and "Five to four, the justices voted to strike down the capital's gun law...For the first time, the Court ruled that the Second Amendment recognizes an individual right to own a gun unrelated to militia service."

Waldman spends considerable space analyzing the majority opinion, written by justice Scalia: "It is the fog of history that rolls most notably across the page...He [Scalia] essentially chose to ignore the actual, stated, publicly known purpose of the amendment--focusing instead on what the words must have meant, if the right dictionaries are consulted."

Ironicaly, Scalia considered the court's decision as a triumph of originalism, the idea that the Constitution must be interpreted as writers originally intended.  But he veers way away from originalism, by adding things that the Second Amendment never addresses, like "prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."  This is not originalism.

Scalia continued: "whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."  To which Waldman responds: "Hearth and home: we've come far from 'a well-regulated militia' and the 'security of a free state.'"  The New Yorker's Jeffrey Toobin summarized it well: "Scalia translated a right to military weapons in the eighteenth century to a right to handguns in the 21st."

In his dissenting opinion, justice Stevens made a consequential strategic choice: He made a better originalist argument than Scalia, writing: "It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable treat to the sovereignty of the several states.  Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms.  Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

After Heller, even some conservatives "were calling out Scalia for having become what he, and they, had decried for years: a judicial activist who conjured spurious legal theories to justify Court interventions into the political process that just happened to advance their policy views and political aims."  J. Harvie Wilkinison III, a federal court of appeals judge called the Heller decision as great an act of judicial overreaching as Roe v. Wade: "After decades of criticizing activist judges for this or that defalcation, conservatives have now committed many of the same sins.  In Heller, the majority read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in more than two hundred years since the amendment's enactment.  The majority then used that same right to strike down a law passed by elected officials, acting, rightly or wrongly, to preserve the safety of the citizenry...The Constitution's text has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy."

Continuing their conservative/ideological agenda, two years later, in 2010, the same five justices issued Citizens United v. FEC.  There the Court overturned the long-standing bar on corporations and unions spending unlimited sums to defeat or elect candidates, based on very broad understanding of the Fourteenth Amendment.  Justice Stevens wrote in his dissent: "While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

Then, "in June 2013, in Shelby County v. Holder, the Court effectively overturned the key provision of the Voting Rights Act, perhaps the nation's most effective civil rights law.  At oral argument, Scalia argued that the Voting Rights Act perpetuated 'racial entitlement.'"

"What seemed to matter most, in each of these cases," Waldman explains, "was outcomes: the political coalition of the party that appointed the justices, with gun owners, business, and white Southern voters at its heart, proved more powerful than any interpretive methodology.  Perhaps this ought not to surprise."

America After Heller

Allow me to quote Waldman at length here:

"In the year before the December 2012 massacre at Sandy Hook Elementary School, the bucolic countryside around Newtown rang with automatic weapons fire and odd explosions.  Police were inundated with complaints of noisy shooting late at night and early in the morning.  The din did not come from weapons for hunting deer (plentiful in the woods), or handguns stashed in a bedside night table.  Residents had begun spraying targets with semiautomatic weapons.  According to the police chief, some had taken to shooting up propane tanks. Others enhanced their targets with Tannerite, a mixture of ammonium nitrate and aluminum powder, which detonates with a roar when hit.  At the request of police, the town council prepared an ordinance to ensure there would not be noisy shootings late at night, early in the morning, or too close to occupied buildings.

Then one hundred hunters and gun activists crowded monthly meetings and decried the zoning proposal as a violation of their Second Amendment rights.  'This is a freedom that should never be taken away," one woman proclaimed.  The National Shooting Sports Foundation--the firearms industry lobbying group--was headquartered in the town, and argued against the ordinance.  The town council retreated.  It never changed the rules.  Mary Ann Jacobs, the chair of the council's 'ordinance committee,' soon became better known: she was the heroic librarian's aide who barricaded the door to shield children at the school during the mass shooting.

A few days after the bloodbath, the National Shooting Sports Foundation website seemed frozen in place.  A message from the group's president professed to be 'deeply shaken and saddened by the horrible events that took place in Newtown, Connecticut, our headquarters and home.'  Surrounding the statement were promotions for the industry's SHOT trade show in Las Vegas, and links to the group's 'Bullet Points' and 'Pull the Trigger' blogs.  Second Amendment fundamentalism, amped up by industry lobbying, turned even a zoning tussle into a fight over first principles: welcome to post-Heller America."

Mass killings (at Newtown, Aurora, Tuscon, etc.) in post-Heller America exist in a new legal space in which "new gun laws will have to comply with the new interpretation of the amendment."  In 2010,  in McDonald v. Chicago, the conservative majority Supreme Court once again upended 200 years of legal precedent by ruling that the Second Amendment applies to the states: "The vote among the justices, once again, was 5 to 4...Justice Samuel Alito wrote for the majority.  Alito's opinion was a judicial victory lap.  It made clear that there was not only a right to a workable gun in the home, but that it was 'fundamental.'"

Despite these legal "victories", the fact is that, in the first two years after Heller, federal courts considered the constitutionality of gun laws in two hundred cases.  Gun laws were upheld in all but two.

"The most significant new cases," Waldman explains, "have addressed the question of whether people can carry loaded guns outside the home.  Here the NRA is pushing hardest for new changes; this is where police insist that gun rights could start to impinge on law enforcement.  Does a right to have a gun in 'hearth and home' include the right to carry a gun down a busy city street?"

Who knows what the future will hold, but the way things are going does not bode well for advocates of gun control.  "Increasingly," Waldman writes, "it is clear that the gun issue is not one of evidence-based public safety policy, but of culture...What matters is what people fear: are citizens more afraid of gun violence or of being exposed to a predator without the ability to protect themselves?...Gun issues...are polarized, values laden, driven by cultural notions of right and wrong rather than what works."

As someone who believes in the value of research, I would like to think that scholars and researchers might have important insights to contribute to this discussion.   Unfortunately, "In 1996, Representative Jay Dickey, Republican of Arkansas--who later described himself as the NRA's 'point person in congress'--won passage of a provision effectively eliminating funding from the Centers for Disease Control's budget for the study of gun violence.  Research funding in and out of government simply dried up...In 2011, Congress extended that ban to the National Institutes of Health as well.  Peer-reviewed, valid scientific evidence is in short supply, at the very moment courts will be requiring it."


So, we have established that, in its original context, the Second Amendment of the Constitution had to do with well-regulated state militias, as opposed to a standing army.  It's very hard to see how this applies to our world today.  Waldman writes: "The world of the Second Amendment is unrecognizable: a world where every white American man served in the military for his entire adult life, where those citizen soldiers bought their own military weapons and stored them at home, and where the idea of a United States Army would be enough to send patriots to grab their musket.  When the militias evaporated, so did the original meaning of the Second Amendment."

We have also seen that, over 200 years after the writing of the Second Amendment, five conservative judges were able to radically re-interpret its meaning.  In light of gun violence and mass shootings in America, I find the current legal trend disturbing.

But one thing gives me hope.  The beauty of our Constitution is that it can change.  The Second Amendment was just that--an Amendment of the original version.  This may come as a shock to Constitutional fundamentalists.  Abraham Lincoln said, "Public sentiment is everything.  With public sentiment, nothing can fail; without it, nothing can succeed.  Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions.  He makes statutes and decisions possible or impossible to be executed."

Perhaps, in time, public sentiment will change, and so will our policies.

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