December 16, 2012

Brief history of the Second Amendment

The Unspeakable Original Intent of the Second Amendment

By Laurie Endicott ThomasTo understand the Second Amendment, you have to understand why the Constitution itself was written, and why it was subsequently amended. The desire for a national Constitution to replace the Articles of Confederation sprang from a debt crisis. To finance the Revolutionary War, the states and the Continental Congress had borrowed a lot of money. Afterward, the states had to raise taxes to pay off those loans, with interest. As a result, many small farmers lost their land or ended up in debtors' prison. Naturally, some people resisted the tax collectors. In Massachusetts, a Revolutionary war veteran named Daniel Shays led an uprising of state militiamen. A similar uprising, called the Whiskey Rebellion, took place in western Pennsylvania. Not only were poor people rising up in open revolt, but the wealthy citizens of the new nation were frustrated by a chaotic financial market. Lenders had no confidence that the state courts would enforce repayment of loans. As a result, people like James Madison, who later became known as the Father of the Constitution, couldn't get loans to buy new land on the frontier.

If the Constitution was intended to enable the state governments and the federal government to put down local rebellions, why did the Framers amend the Constitution to allow "the people" to bear arms? It's because the "well-regulated militia" that was described in the Second Amendment wasn't intended to be used against the federal, state, or local government. It was to be used against slaves and Indians.

Under English law, all able-bodied men had to respond to their local sheriff's request to serve in a posse to pursue criminal suspects. However, the kinds of weapons that a man was allowed to have depended on his social class and religion. These laws were adapted to serve the needs of the slave economy in colonies such as Virginia. A 1639 law in Virginia required young white men to be armed at public expense. By 1680, it was illegal for black men, slave or free, to carry weapons. Eventually, Virginia permitted black men who lived on frontier plantations to keep guns for defense against Indians.

The Second Amendment was not intended to enable ordinary people to attack the federal government or their state or local government. It was to enable whites to use violence against slaves and Indians.
The Real Rationale for the 2nd Amendment, That Right-Wingers Are Totally Ignorant About

A big obstacle to commonsense gun control is the Right’s false historical narrative that the Founders wanted an armed American public that could fight its own government.

By Robert Parry
The Second Amendment dealt with concerns about “security” and the need for trained militias to ensure what the Constitution called “domestic Tranquility.” There was also hesitancy among many Framers about the costs and risks from a large standing army, thus making militias composed of citizens an attractive alternative.

So, 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.” Contrary to some current right-wing fantasies about the Framers wanting to encourage popular uprisings over grievances, the language of the amendment is clearly aimed at maintaining order within the country.

That point was driven home by the actions of the Second Congress amid another uprising which erupted in 1791 in western Pennsylvania. This anti-tax revolt, known as the Whiskey Rebellion, prompted Congress in 1792 to expand on the idea of “a well-regulated militia” by passing the Militia Acts which required all military-age white males to obtain their own muskets and equipment for service in militias.

In 1794, President Washington, who was determined to demonstrate the young government’s resolve, led a combined force of state militias against the Whiskey rebels. Their revolt soon collapsed and order was restored, demonstrating how the Second Amendment helped serve the government in maintaining “security,” as the Amendment says.

Beyond this clear historical record—that the Framers’ intent was to create security for the new Republic, not promote armed rebellions—there is also the simple logic that the Framers represented the young nation’s aristocracy. Many, like Washington, owned vast tracts of land. They recognized that a strong central government and domestic tranquility were in their economic interests.

So, it would be counterintuitive—as well as anti-historical—to believe that Madison and Washington wanted to arm the population so the discontented could resist the constitutionally elected government. In reality, the Framers wanted to arm the people—at least the white males—so uprisings, whether economic clashes like Shays’ Rebellion, anti-tax protests like the Whiskey Rebellion, attacks by Native Americans or slave revolts, could be repulsed.
Gun-Rights Advocates Should Fear History of Second Amendment

By Saul CornellA cursory look at the history of the Second Amendment shows that regulation was a central part of its rationale—putting “well regulated” at the very start of the amendment was no accident. For instance, starting in the colonial period, states enacted a variety of “safe-storage” measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston.

But many people who defend gun rights today are more than happy to skim over the first part of the amendment in their zeal to embrace the second. (The NRA itself literally chopped off that pesky first half when it chiseled the words on the face of its old headquarters.) As a result, our modern gun-rights ideology is often unmoored from any sense of corresponding civic obligation.

This ideology claims to rely heavily on the Second Amendment, and yet it is rooted not in the Founders’ vision, but in the insurrectionary ideas of Daniel Shays and those who rose up against the government of Massachusetts in 1786 and 1787. Indeed, there are gun-rights advocates today who think the Second Amendment actually gives them the right to take up arms against the government—but if that were true the Second Amendment would have repealed the Constitution’s treason clause, which defines treason as taking up arms against the government!

This is all so deeply twisted: after all, the Founders framed the Constitution in part as a response to the danger posed by Shays’ Rebellion.
Better gun control’s biggest obstacle

The Second Amendment's not to blame. It's how it's being interpreted by the Supreme Court

By Scott Lemieux
To understand the relative marginality of the Second Amendment, it is first of all important to distinguish between the Second Amendment and “the Second Amendment as it has been interpreted by a bare majority of the Supreme Court since 2008.” The text of the amendment does not explicitly bar any regulation of firearms. The famously enigmatic language of the amendment resists any determinate interpretation. The Amendment does state that “the right of the people to keep and bear Arms, shall not be infringed”—implying, in isolation, an individual right to posses firearms. This is the interpretation that prevailed 5-4 in D.C. v. Heller. But this language is preceded by describing a purpose (“A well regulated Militia, being necessary to the security of a free State”) that implies a collective right, or a right belonging to state governments. Before 2008, the sparse Supreme Court precedent in the area favored the latter interpretation, which does not foreclose even outright bans on the private possession of firearms as long as states are able to maintain militias. If Al Gore had won the electoral college as well as the popular vote in 2000, this interpretation of the amendment probably would have prevailed—and it could easily prevail again in a country in which there was a stronger commitment to regulate firearms. The interpretation of the Second Amendment endorsed by the Supreme Court in D.C. v. Heller was a political construction advanced by a powerful political movement, not a purely technical legal argument. Such constructions are always subject to revision as the personnel on the Court changes.

Moreover, it should also be remembered that Heller was a much narrower opinion than is commonly understood. Heller does foreclose an outright ban on handguns, but such bans were relatively rare at the local level (where, in a country with free movement between state borders, they are also less effective) and would be a non-starter at the federal level even had Heller come out the other way. But Justice Scalia’s opinion made it clear that the individual right to bear arms defined by the Court was far from absolute. “[N]othing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding 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.” The only right clearly established by Heller was the right for a competent, law-abiding adult to possess some kind of handgun for “immediate self-defense” in one’s own residence.
Comment:  So the Founding Fathers passed the Second Amendment so ignorant bumpkins who couldn't even vote--if they didn't own property--could knock off them, the rich aristocrats who controlled the government? It sounds absurd if you think about it.

For more on the Second Amendment, see "A Well Regulated Militia...."


Anonymous said...

In fact, the first gun control laws were to keep guns out of the hands of freed slaves.

(To be fair, at the exact time the Second Amendment was signed, rifling didn't exist yet, so you really couldn't rely on guns for self-defense.)

Rob said...

Yes, Southerners feared the federal government could strip the slave states of their slave-patrol militias, thus letting the slaves go free. The Second Amendment prevented the feds from interfering with these state militias.

For more on the subject, see:

The Second Amendment was Ratified to Preserve Slavery