Sunday, January 20, 2013

The Amendment You Think You Understand

...but do not.

Not until 2008 did the Supreme Court of the United States (SCOTUS hereinafter) actually rule that the Second Amendment applies to private gun ownership. Even then, the decision was 5-4, with a very compelling dissenting opinion, authored by Justice John Paul Stevens. The case was District of Columbia V. Heller, 2008, in which Stevens argued, rightly I believe, that if the framers had been concerned with individual rights of gun ownership, they would have expressly said so. He was joined in dissent by Justices David Souter, Ruth Bader Ginsberg, and Stephen Breyer, making it a five to four ruling that the Second Amendment DOES protect a private individual's right to possess a firearm for traditionally lawful purposes, including self-defense. 

To hear the leadership of the NRA, etc., tell it, the Second Amendment has always protected the individual's right to own firearms. Not so! This was the FIRST TIME the SCOTUS had decided a case in which this point was argued. It was 5-4, with a strong dissenting opinion. Yes, the gun rights advocates won...barely. This was a case primarily involving handgun ownership, as the law in question severely restricted the ability to own a handgun in DC. It was hardly a mandate for an individual's right to own an assault rifle. It is time to take the Constitution back from these radicals, and time for a shift in the balance of power in our highly dysfunctional Supreme Court.

Here’s the thing…the Second Amendment was not written to protect private gun ownership, far from it. Stop buying the lies of the gun lobby, and read the actual amendment.

As passed by the Congress and ratified by the states, the amendment reads:

"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."

Where in this amendment does it say anything about the individual? “The people” in constitutional language means the body politic and their dependents...collective rights, not individual rights. This means that a free STATE has the right to maintain a well regulated militia, which can only be done if that militia has arms and ammunition, ergo, the STATE, and, collectively, the people, has the right to keep and bear arms. This means that the federal government cannot willfully disarm any given state and thereby deprive it of it's militia. Why would states be so defensive about this? Tyranny, you say? Yes, but not the tyranny you think. This was, pure and simple, an amendment to protect the interests of slaveholders. It had NOTHING to do with the private individual’s right to own a firearm, in its original context.

I've been writing about this on other peoples' threads for several days. I can only hope that some of you will take note of the sources and help spread the word. Before the United States existed, colonies relied on colonial militias for defense against whatever: Native American uprisings, slave revolts, border incursions by the French or Spanish...whatever. In some communities...Williamsburg, e.g., there was a central arsenal at which muskets, powder and shot were stored for the local militia. The militia would be called out, weapons and ammo issued, and there you go. In other places, the militia was more dispersed, and so it made sense for individuals to "keep and bear" arms...either their own or ones issued them by the colonial government.

As to the role of the militia and firearms position in defending the interests of slaveholders, consider for example that in colonial South Carolina, there was actually a law requiring men to carry their muskets to church! This was because the most likely day for a slave uprising was on Sunday. The colonial militia worked in conjunction with slave patrols to maintain slavery. This is well documented by historian Sally E. Hadden and others. In some colonies and, later, states, the militia and the slave patrols were under the same command structure, in others, separate. This militia-slave patrol dynamic duo would be the model the newly formed states would adopt.

Regarding widespread ownership of guns by private individuals after the Revolution, well, that was more common in the states with large slave populations and in the trans-Appalachian area, particularly Kentucky and the Ohio Valley. Elsewhere, not so much. Consider the case of the famous Daniel Shays of Shays' Rebellion, who actually had to sell a ceremonial sword given him by the Marquis de Lafayette, due to his indebtedness. It is a myth that all those soldier boys went home with their weapons and were intent on keeping them as a defense against tyranny. Firearms simply were not as numerous as people think. Good Pennsylvania rifles were pretty scarce, as they were time-consuming and expensive to manufacture. Military muskets were not all that useful for practical applications such as hunting, shooting wolves, etc., so many veterans sold theirs, dirt cheap, as they needed money more than firearms. They also sold off much of the land granted to them for their service.

The Shaysites, men who were fed up with being in debt, being taxed, etc., went on an anti-debt-collection rampage in New England and New York. They burned court houses and tried to rob an arsenal in Massachusetts. They needed to rob an arsenal, as there were so few guns to be had among them. They were trying to raise an army, but had too few guns and not enough ammo. Most of the weapons in Massachusetts were in state arsenals, not private hands! The Shaysites even threatened to march east and take over the government of Massachusetts, which scared the east coast elites so badly that they formed a well-paid, well-armed private army to defeat the Shaysites.

This situation was unacceptable to coastal elites, and so the call went out for reconsidering the Articles of Confederation. The resultant constitution would establish an executive branch with the power to raise an army for the common defense...something that was sorely lacking during Shays' Rebellion. As for local militias in Massachusetts, some sided with Shays, others fought against him, but there was no federal authority to call out the militias of other states in order to suppress that rebellion. So New England representatives favored federal control of all militias, so that an event such as Shays' Rebellion could quickly be put down.

Read the Constitution: it specifically grants extraordinary power to the Chief Executive in the event of a rebellion. George Washington established the precedent for calling out the militia during the so-called Whiskey Rebellion, and Abraham Lincoln followed that example at the beginning of the Civil War. Upon reading the wording of the proposed constitution, Patrick Henry and others were most appalled. Yes, this kind of central authority was needed for common defense, clearly, but it COULD be used for other purposes. For example, since the slaveholding states (I mean the ones with large, concentrated slave populations) relied on the militia and slave patrols to maintain their peculiar institution, they would be particularly vulnerable if the federal government decided to disarm or disband the militias.

And so Henry, along with the large-scale Virginia slaveholder George Mason and others, lobbied for an amendment to protect the interests of Virginia and other large-scale slaveholding states. "The people" according to this amendment have the right to keep and bear arms, in order to maintain a well-ordered militia at the STATE level. It says nothing about private individuals. Here is a reasonable summation of the argument I have just presented, with quotes in support of this argument:

So believe what you will, but I am a professional historian, a published and well regarded scholar, and I get paid (a meager salary) to teach history to your teenagers, and it is my strong belief that the Second Amendment, based on the INTENT of the framers (a term people LOVE to bandy about), had nothing to do with the rights of private individuals to own firearms. If they were concerned about this right to own weapons for hunting, self-defense, etc., they would have followed the lead of existing state constitutions that specifically protected those rights! At least four Supreme Court Justices agreed with me in 2008 that gun ownership is a collective, not individual right, and that municipalities and states have the authority to restrict gun ownership. As for the other Justices, well, look at the interests they consistently serve. Ugh.

Basics of the Heller ruling:


Carolina Linthead said...

I would point out that individual states HAD taken steps so secure the rights of individuals to own firearms, Pennsylvania and Vermont being the best examples. It is in the post-Civil War era that the legal debate begins over individual ownership rights. And then there are cases authorizing restrictions on guns, culminating in McDonald v. Chicago. I'll try to write on this later in the week.

Lowandslow said...

Very interesting. Please write more.

Still, I can't help but thinking that in my region at least (Texas) private gun ownership was necessary and taken for granted. Until fairly recent times we were still overwhelmingly rural and hunting game for food was common. I just find it hard to believe that these hardy people ever thought that their PRIVATE gun ownership was something that could be regulated by government, and would have objected vigorously if it had been attempted.

As you suggest they might have thought the 2nd Amendment was to protect their state militias and their "states rights", but their right to PRIVATE gun ownership was beyond question. Of course, this was long before the day of AR-15's and such.


Carolina Linthead said...

Private ownership rights WERE assumed...for white men. States, however, had the power to limit firearms ownership, and many did as part of their "Black Codes." So there is precedent for restricting gun ownership at the state level. I will write more about the majority opinion of the Heller case and especially McDonald v. Chicago. I disagree with the Heller ruling because I believe that states and communities do have the right to limit gun ownership. They have exercised that right before. However, as the McDonald majority opinion points out, one of the most vocal groups in favor of private gun ownership in American history was the free black population following emancipation. It is in the era of Reconstruction and after than you really begin to see the argument that the 2nd Amendment applies to individuals. Up until that time, it was an assumed right by "the people" meaning white citizens, but not necessarily extended to people of color. Anyway, more later.

Lowandslow said...

Love the exchange. Thanks. Looking forward to more of your historical posts.


Lowandslow said...

One question: You said states had the right to limit firearm ownership. Where was that written?

Carolina Linthead said...

Not written but implied rights. The 10th Amendment is key here. Powers not expressly granted to the U.S. government are granted to the states AND "the people." This is at the heart of the debate over the 2nd amendment that has reached a head over the last decade. I am in the minority opinion, here, again siding with the dissenting Supreme Court justices. Based on the rather narrow ruling in D.C. v. Heller and the more expansive ruling in McDonald v. Chicago, states and municipalities currently have virtually no rights to restrict gun ownership for the purpose of self-defense, so long as individuals meet the basic requirements mandated for purchasing said weapons. States can and do impose restrictions on other aspects of firearms, as in the case of high-capacity magazines that may be legal in Texas but illegal in New York.

Lowandslow said...

Understand. Thanks for the clarification.


Whittredge said...

Odd that everywhere else in the Bill of Rigths where it says, "The People" the rights in question are understood to apply to individuals. Why would this not true of the 2nd?

If you are a historian, you know that Standing armies were perceived to be tools of oppression in the Anglo-American tradition. As a result, the citizen militia was seen as the guarantor, by making a standing army largely unnecessary; and to be clear, the citizen militia was not understood to be a force under the control of the state. It was every active able bodied male. This fact alone should make it clear that the second amendment was, indeed, intended to apply to individuals. Reading primary sources of the time, it is clear that firearms in the hands of ordinary citizens were perceived as a preventative measure, reminding the agents of the state that recourse to heavy handedness was available to the people if necessary.

Carolina Linthead said...

Standing armies were a great fear, but so, too, was fear of the tyranny of the mob. Ask Sam Adams, who was ready to hang every last one of the Shaysites, what he thought of the citizens of western Massachusetts. Firearms in the hands of private citizens was viewed by many as a preventative against tyranny, but it was also viewed with distrust by eastern elites. The United States were not monolithic in 1787. Frankly, the people most interested in maintaining a citizen militia to guard against tyranny were men likely not to support this Constitution at all, as it was in so many ways a reining in of the last vestiges of the Revolution. Sam Adams said one revolution was enough for any lifetime. The Boston book seller and artillerist Henry Knox wrote George Washington, telling him of the troubles and asking what might be done. The young nation in 1787 was divided, north, south, east, and west, and that is illustrated by maps that show the voting patterns for or against the Constitution. The Bill of Rights was a necessary compromise document that helped get the Constitution ratified, but it is full of ambiguity and double meaning. Rights of "the people" may be considered individual rights, until you are defined as a rebel, and then the full weight of the central government is going to come down on your head. Also, consider interpretations of "the people" when it comes to loitering, vagrancy, etc. Seems we have the freedom to assemble...unless we are black men standing on a street corner, etc. Anyway, the message was clear in terms of the powers granted the Commander in Chief: no more Shays' Rebellions. So when Madison penned the 2nd Amendment, he used language that would appeal to men of the west, who saw possession of firearms as absolutely essential, but he did not elaborate. He did not say that persons may possess firearms for hunting, self-defense, etc., including resistance against the tyranny of the central government. He said that in order to maintain a well-regulated militia, "the people" had to be armed. That's a tricky phrase by a master of words, in a document where virtually every word was debated and challenged at some point. It is a fascinating topic, really.

Carolina Linthead said...

I, personally, believe that individual rights of gun ownership were implied in the 10th amendment as rights to be regulated by the state, in the case of well-ordered militias, or by "the people," meaning the citizens of each state, in the case of private gun ownership. This was the stance taken in US v. Cruikshank, 1876, when the Supreme Court ruled that the 2nd Amendment "has no other effect than to restrict the powers of the national government." So the national government could not disarm or disband state militias, but it also refused to defend the rights of African American citizens who were being disarmed by White Supremacists. The implication of this ruling was that it was up to the states to protect the right to keep and bear arms among their own citizens. The right to keep and bear arms was assumed, but not because of specific protection accorded by the 2nd Amendment. The dissenting opinion in this case argued that the 14th Amendment did allow the federal government to act in order to protect the constitutional rights of its citizens. This was the stance taken by our current court in McDonald v. Chicago. They had previously ruled in DC v. Heller that the 2nd Amendment did apply to individual rights, and in the Chicago case they ruled that, via the 14th Amendment, the federal government could intercede to protect the constitutional rights of individuals. Clarence Thomas's concurrent opinion on this is quite striking. So basically we are now back to pre-Cruikshank territory, with the caveat that none of these rulings challenge the exclusion of certain persons from the right to own firearms. Anyway, the point of this exercise was for me to vent steam and think about this topic more deeply. Thank you...all of you...for your insight and input! This is the kind of conversation that needs to be ongoing. We NEED to go back and read primary sources. We need to read these important court decisions. I am guilty of knee-jerk liberal ranting, but I've heard and seen a lot of knee-jerk ranting from the other direction, along with open threats of violence. Out of many, we are one. We the people have to move forward together, as did our forebears.

The Geezers said...

Thank you for a well-reasoned, very well written argument. Not that it will change the minds of the NRA fringe.

And a nice blog you have here.

Carolina Linthead said...

Thank you! I like my's more pics and poetry than opinion, but I do try to be reasoned and informed in my arguments :-)