The Second Amendment, a Biography, Michael Waldman, 2014
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.
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.
The Constitution was drafted in secret by a group of mostly young men, many of whom had served together in the Continental Army, and who feared the consequences of a weak central authority. They produced a charter that shifted power to a national government. “Anti-Federalists” opposed the Constitution. They worried, among other things that the new government would try to disarm the thirteen state militias. Critically, those militias were a product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age 16 to 60 was enrolled. He was required to won—and bring—a musket of other military weapon. Debate still burns about the Framers’ intent and the original meaning of the Constitution. Surprisingly, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention…It protected the individual right to a gun…to fulfill the duty to serve in a militia.
In the years following the Civil War, the authors of the 14th Amendment wanted to make sure that the former slaves could arm themselves to protect against organized violence from white vigilantes. Bur gun control laws were prevalent, too. An iconic photo of Dodge City—that legendary frontier town—shows a sign planted in the middle of main street: “The Carrying of Fire Arms Strictly Prohibited.”
The militia of 1775 was a sell organized military force, well trained, and woven firmly into the fabric of colonial government…farmers fought as members of formal military units. This was the apogee of the well-regulated militia, comprised of framers and innkeepers, that not only defended their towns but defined the republican ideal of active, virtuous citizenship…It comes to us from a moment when ordinary citizens were expected to bear arms for the community. More than a right, being armed was a duty.
People of 1775 did not see the army the way we might today—as a noble embodiment of patriotic spirit, or a force that binds a nation together. They saw the army as tyranny in the making, authoritarianism on the march. To the people of Boston, under military occupation, the British Army was not a representative of “us” but an oppressive force sent by them.
A colonial era writer explained for New Englanders, the “near neighborhood of the Indians and French quickly taught them the necessity of having a well-regulated militia.
In order to pay for the French and Indian war, London imposed the Stamp Act, which launched the animosity that ultimately led to war. “Suddenly the colonial militias were vital, even dangerous. Whig militias, opposed to the crown, began to elect Whig officers. Training, recruitment, maneuvers , and marching stepped up. Britain imposed an arms embargo. Colonists began to buy and collect guns, smuggling them from the Continent…The revolutionaries who assumed control of the state governments in 1775 and 1776 wrote new constitutions, many enshrining the militia, and making clear that ordinary citizens were to bear arms in its service. Virginia’s declaration explained the role of the militia and army in this new constitutional vision:
That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and sage defense of a free State; Standing Armies, in time of peace, should be avoided , as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
Serving as an internal police force, Militias kept order, rousted (and punished) Tory sympathizers, and warded off Indians on the frontier.
As we read the Constitution today, it is easy to skip over this oddly precise language. To the Framers, these paragraphs were exceedingly important. Some delegates sought to move more decisively toward an army—paid, trained, professionalized. Others clung to the belief that state militias were more representative of the people, and provided a check on a possibly overweening central government. Most were torn; they yearned for an effective national force, yet felt protective of the state militias, and were eager to profess their continued fealty to the ideal…If a president on horseback or a rampaging Congress were tempted to use a U.S. Army as an oppressive force, the state militias—made up of armed freemen—would stand in their way.
Madison said, “A standing army is like a standing member. An excellent assurance of domestic tranquility, but a dangerous temptation to foreign adventure.”
Towards the end of the Constitutional Convention, “delegates had the slightest inkling that private gun ownership was viewed as being at risk and required inclusion in a bill of rights. It simply did not come up.
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 restrictions on gun ownership. People deemed dangerous were barred from owning weapons. Pennsylvania disarmed Tory sympathizers. Residents had to swear a loyalty oath. Before the Revolution, Maryland had prevented Catholics from owning guns. Rhode Island conducted house-to-house census—an early American form of gun registry.
To modern readers, one area of confusion comes from the fact that weapons were far less powerful than today. Nelson Kund, opposed to gun control, notes, “Technological advances have created a sharp distinction between military weapons and the less lethal weaponry customarily kept by civilians for self-defense. This change, along with the firmly established practice of maintaining large peacetime standing armies, has created the need for legal distinction that the Framers had no cause to consider. For the, there was no difference between military and civilian small arms.” The Framers focused on the military purpose of bearing arms, but the weapons in question were muskets, not bazookas or drones.
Madison, in Federalist 46, wrote, “Americans have the right and advantage of being armed—unlike the citizens of other countries whose governments are afraid to trust people with arms.”
During the debates around The Bill of Rights, “the purpose of hte right of “keeping arms” was to strengthen the militia and thus ward off the specter of an army. Twelve congressmen joined the debate None mentioned a private right to bear arms for self-defense, hunting, or any purpose other than joining the militia. p56
Madison seemed to regard “the people” as a synonym for “militia.” If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed to suppress and repel them, rather than a standing army. The best way to do these things, was to put the militia on a good and sure footing, and enable the Government to make use of their services when necessary.” p62
David Yassky notes:
“Searching the Library of Congress database containing all official records of debates in the Continental and U.S. Congresses between 1774 and 1821 reveals thirty uses of the phrase “bear arms” or “bearing arms.” In every single one of these uses, the phrase has an unambiguously military meaning.
We cannot know what the Framers intended. But one would have to look far to find evidence that their principal concern was the risk that government would enact gun safety laws, or disarm farmers. They may have thought widespread gun ownership obvious or necessary, but thought it equally obvious that laws could protect public safety too. Yes, they sought above all to protect militias. But militias, as they understood it, were drawn from all the people. The militias required an armed citizenry. p63-64
We have an early clue about what the Framers meant by a “well regulated militia.” A few months after the Second Amendment took effect, Congress passed the Uniform Militia Act of 1792. A militia force led by General Clair had attached Indians in the Ohio Territory, and lost nearly half its men. Congress decided it was time to put some teeth into the militia system. The new federal law required “each and every free 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. Congress even established a nationwide registry of privately owned guns for militia use, called a “return.” Officers were to catalogue the military-grade guns owned by the militiamen, and report to the central government. p66
As the country changed, expanded, grew more democratic and more rambunctiously individualistic, the duty-bound concept of militia service withered. Fewer people showed up. In the era we call “Jacksonian democracy,” gun violence rose sharply. In the West and South, Americans dueled, drank, brandished weapons, and took ready offense. Andrew Jackson himself fought numerous duels, and killed at least one mand who had insulted his wife. States began to pass the first modern-style gun control laws, focusing on easily concealed pistols. In response to these laws, for the first time, some Americans began to argue that the “right to bear arms” protected individual gun ownership.” p68
Courts generally ruled that “the right to keep and bear arms referred to militias and not individual rights. Arkansas’s court ruled that the Second Amendment and similar provisions in the state constitutions only protected militias. Two models emerged: one calling the right a collective one, the other an individual right.
The South relied more on guns, because the South was a society with millions of people in bondage who could revolt at any moment. Many laws in Southern states had disarmed free black men. Slave states were growing increasingly insistent that slavery be protected, and that it expand into new territories. They were responding, in turn, to something new: the abolitionist movement. It, too, now saw guns as part of the answer. Southern whites held to the idea of racial domination, by force if necessary. State governments passed Black Codes seeking to restore slavery in all but name. These laws disarmed African Americans but let whites retain their guns. South Carolina’s black citizens sent a petition demanding the right to be armed on equal terms with whites. p71-72
By 1873, the militia system had vanished. In 1903 Congress passed the Dick Act. It created what we know as the National Guard, spending federal funds to train part-time soldiers (and requiring them to muster a certain number of days). “Well regulated, ” yes, but a far cry from the militia as the Framers know them: only a small number of them, who would muster for a short time every year. This is what the Founding generation would known as a “select militia.” The “standing army” so widely feared is the Unites States Army, created in its modern form during WW1. p78
The Supreme Court ruled twice more that the Second Amendment did not create an individual right to gun ownership. p80
Prohibition had sparked mayhem in the cities, as gangs battled to control the flow of illegal liquor. New weapons, first designed for use in WW1, made it wasy for gangsters to spray bullets. Franklin Roosevelt waged a crackdown on gangsters and their guns, what his attorney general called a “New Deal for Crime.” And he won passage of the first federal gun legislation, the National Firearms Acto fo 1934. The law imposed a heavy tax on weapons used most prominently by gangsters and familiar to any moviegoer at the time. Machine guns and sawed-off shotguns had to be registered, and could not be transported across state lines. Originally the bill included pistols, but opposition from gun owners forced amendment. In the end the National Rifle Association–then a sportsmen;s group–backed the plan. The act swept through Congress in Roosevelt’s final term. The federal crackdown on guns was hugely popular. p81
Franklin Roosevelt weight a crack down on gangsters and their guns, what his attorney called A, “new deal for crime.” And T1 passage of the first Federal gun Legislation, the National Fire Arms Act of 1934. The law imposed a heavy tax on the weapons used most prominently by gangsters and familiar to any movie go her of the time. Machine guns and sought off shotguns had to be registered, and could not be transported across state lines. Originally the bill included pistols, but opposition from gun owners forced amendment. In the end the National Rifle Association-then a sportsman’s group-back the plan. The act swept through Congress and Roosevelt’s third term the Federal crack done on guns was hugely popular. Page 81
The bradycardia below-named after his wound did press secretary, James S Brady, who campaign for passage-required a background check and waiting. Before buying a gun. The next year Pres. Bill Clinton one passage of a ban on a salt weapons as a result of a larger crime but. Most focus, though, fell on other criminal justice measures that sought to grapple with a surge of crime and drugs. Page 84
In 1871, Melissa N Army veteran’s created a new organization to train American man to shoot safely and accurately: The National Rifle Association. Federal officials stepped in, creating the National Board for Promotion of Rifle Practice in 1901. It gave away several guns to club sponsored by the NRA. Between the world wars, Federal government provided 200,000 rifles to NRA members at cost. After the defeat of Japan, with its membership swelled, the NRA began to shift its focus. Its publications well gone hunting and sports shooting, not para military activity. In the late 1950s, it opened a new headquarters building to house its 100s of employees. Metal Z spelled out its purpose in 1958: Firearm safety education, marksmanship training, shooting for recreation. The NRA expressed unease with gun loss. But even as its ranks group, it did not object to the first Federal gun control measure, Franklin Roosevelt’s 1934 national fire arms act, which banned machine guns and sought off shotguns. Its chief lobbyist testified before Congress. “I have never believed in the general practice of carrying weapons,” he told a house community “I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.”
Crime remained low, and political violence minimal, in the years of consensus during World War II and the early Cold War. The tumult of the 1960s fractured that calm. Gun violence began to assume the status of public controversy.
In March 1963, an advertisement appeared in the NRA’s American Rifleman Magazine: LATE ISSUE! 6.5 ITALIAN CARBINE, Only 36” overall, weights only 5.5 lbs. Shows only slight use, lightly oiled, test fired and head spaced, ready for shooting, Turned down bolt, thumb safety, 6-shot, clip fed. Rear open sight. Fast loading and fast firing.
A man calling himself “A. Hidell” clipped the coupon and sent $21 and 45 since Chicago based mail order house to buy the military rifle. Hidell was Lee Harvey Oswald. After the assassination in Dallas, investigations angrily focused on the fact that it was possible to buy a rifle and ammunition site unseen through the mail. A man calling himself “A. Hidell” clipped the coupon and sent $21 and 45 since Chicago based mail order house to buy the military rifle. Hidell was Lee Harvey Oswald. After the assassination in Dallas, investigations angrily focused on the fact that it was possible to buy a rifle and ammunition site unseen through the mail. Congress considered a new gun laws. An NRA official testify, “we do not think that any sane American, who calls himself in American, can objective placing into the spell instrument which killed the present United States.” Gun owners, however, contacted Congress to bury the bill. Law makers vowed an investigation of the gun lobbied itself. P89
“The most gun addicted sections of the United States are the South and the Southwest. In 1968, when the house voted for a mild bill to restrict the male order serial rifles, shotguns, and ammunition, all but a few of the 118 votes against it came from these regions. This no doubt has something to do with the rural character of these regions, but it also stems from another consideration: In the history of system of the South, having a gun was a white prerogative. P 89
In March of that year supporting restrictions on cheap “Saturday night special” handguns, American rifleman told its readers the NRA “does not necessarily approve of everything that goes bang.” P90
Gun group veterans still call the NRA’s 1977 angle meeting the “revolt at Cincinnati.” One weekend in 1976, the NRA board fire 80 staff members. The next year, the organizations leadership decided to move its headquarters to Colorado Springs, Colorado, signaling a retreat from politics. More than 1,000 angry dissidents showed up at the annual convention. Many wore orange caps, and communicated by walkie-talkie. As they sweltered they insinuated that the old guard had turned off the air-conditioning. By 4 in the morning, the dissenters had voted out the organizations leadership. Activists from other groups-the Second Amendment Foundation, the Citizens Community for Right to Keep and Bear Arms-pushed their way into power. Neal Knox, editor of Gun Week magazine, became the NRA’s new head lobbyist. He opposed gun laws of any kind. Knox mused on whether the assassinations of the 1960s were part of a gun control conspiracy.
“Is it possible that some of these incidents have been created for the purpose of disarming the people of the free world? With drugs and he will intent, it’s possible,” he wrote in Shotgun News in 1994. “Rampant paranoia on my part? Maybe. But there have been far too many coincidence since to ignore.” The NRA’s new leadership was dramatic, dogmatic, and overtly ideological. For the first time, it embraced the idea that the second amendment-not just the interests of hunters or even of homeowners, was at the heart of its concerns. The first American Rifleman after the revolt had a new paragraph un “What the NRA IS”: The NRA, foremost Guardian of the traditional American right to keep and Bear arms, believes that every law abiding citizen is entitled to the ownership in legal use of firearms in the every reputable gun owner should be an NRA member. The NRA’s lurch to the right was part of an abrupt shift across the republican coalition.
1972 republican platform had supported gun control. “We pledge a tireless campaign against crime-to restore safety to our streets, and security to law abiding citizen’s who have a right to enjoy their homes and communities free from fear. We pledge to intensify efforts to prevent criminal access to all weapons, including special emphasis on cheap, readily attainable handguns with such federal law as necessary to an able to states to me the responsibilities.” In 1980 GOP platform now proclaimed, “we believe the right of citizens to keep and bear arms must be preserved. Accordingly, we oppose federal registration of firearms.” They called for repeal of some existing gun laws. That year the NRA gave Reagan its first ever presidential endorsement. P93
The NRA in the gun” movement had moved beyond traditional sporting concerns. Increasingly it took on an apocalyptic, insurrectionist tone: An organization that started as a project of Union Army officers now challenged government’s very legitimacy. Clots of angry citizens have begun to form armed militias, warning that United Nations troupes flying black helicopters with soon stage raids on the heartland. In organizational resolution declared: “Although the NRA has not been involved formation of any citizen militia units, neither has the NRA discouraged, nor would the NRA contemplate discouraging, exercise of any constitutional right.” P94
But courts, scholars, and the legal community with rare unanimity for much of the Sentry had agreed that the second amendment did not mean with the camouflage-clad attendees at Charlton Hesston speeches said it did. There was no more settled review unconstitutional law than that the second amendment did not protect an individual right to own a gun. After all, the Supreme Court had considered the matter 4 times, and had never found a second him and right tube individual gun ownership. In the reconstruction era, Cruikshank case, it ruled that the amendment did not cover the states. In Pressor, it found that gun rights belonged to militias. In Miller v. Texas in 1984, he rejected the criminal defendants gun right claim. In the 1939 Miller case, it upheld federal gun law, making clear that gun laws only could not interfere with actual, current militia service. Lower courts agreed, when they considered the topic at all. Few litigants even raised and alternative view: It was seen as frivolous, a fringe position. But by the time Supreme Court her another challenging in Heller, there was strong Momentum for a different view. P97
One political scientist examined a century’s worth of law review articles on the second amendment. From the time the reviews began to be indexed in 1888, to 1960, every single article concluded the second amendment did not guarantee an individual right. The first argument otherwise-written by a student, who began by citing an article in American Rifleman- appeared in 1960. It said the amendment enforced a “right of revolution,” of which the southern states availed themselves during what the author called “the war between the states.”p97
By one estimate, three strikingly prolific writers–Halbrook, Don Kates, David Hardy–wrote thirty law review articles in the 1990’s and received a million dollars in funding to back their work on gun issues…It is hard to convey fully the circular nature of these writings. One after another, they plumbed the same material, extracted the same quotes, and piled up citations to one another. Soon they began to include self-congratulatory explanations of how many other articles made the same point. Joyce Lee Malcolm bragged to a magazine writer, “There is no one for me to argue against anymore.” The respected libertarian law professor Glenn Reynolds in 1995 surveyed the terrain and declared there was a new “Standard Model,” akin to the ones adopted by physicists or astronomers to denote scholarly consensus. (P98)
Jack Rakove, Pulitzer Prize-winning historian and author of Original Meanings, notes, “It is one thing to ransack the sources for a set of useful quotations, and another to weigh their interpretive authority. Originalism is first and foremost a theory of law and constitutional interpretation, but its viability depends upon its approach to history and its uses of historical evidence…” The revisionist wave came not from historians but from lawyers, an law professors. “Law office history,” describes the practice of plucking facts or quotes out of time or context to fit a legal argument. (P99-100
One is reminded of Robert Frost’s definition of a liberal: someone so open-minded he will not take his own side in an argument.)
Since the 1960’s, conservative jurists have come to dominate deferal courts. The Supreme Court considered its gun case at their moment of peak influence. Strikingly, this new wave of conservative judgeds came to rely on a novel argument: the doctrine known as originalism. They proclaimed that the only legitimate way to interpret the Constitution was to ask what the Founding generation would have thorught its terms meant. This was a radically new way for courts to decide. It came to fruition in the gun case. Originalism has come to dominate the jurisprudence of firearms more than any other major topic. (p103)
Oliver Wendell Holmes, “If my fellow citizens want to got Hell I will help them. It’s my job.”
Originalism, Brennan countered, was “arrogance cloaked as humility.” Often, the intentions of the Framers was ambiguous, with gaps in the record. “Indeed, it is far from clear whose intention is relevant–that of the drafters, the congressional disputants, or the ratifiers in the states?” To choose to limit our interpretation to what we thing the Framers intended, Brennan argued, is itself a choice of values. “Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes in social circumstances”:
If I may borrow the words of esteemed predecessor, Justice Robert JAckson, the burden of judicial interpretation is to translate “the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints of officials dealing with the problems of the twentieth century.” We current justices read the Constitution in the only way that we can: as twentieth century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in the static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with the current problems and current needs.” (P110)
Reduced to its core, originalism promises that judges can ride a constitutional way back machine, taking orders from the esteemed Founders. There is more that a whiff of filiopiety, of worship of the ancestors. Stanford’s Pamela Karlan gibes that originalists should wear a bracelet reading, WWJMD? (What Would James Madison Do?) (P111
Scalia’s evangelizing fo the idea that the only legitimate way to interpret the Constitution is to ask what the Framers and their generation intended in 1789 has become a dominant philosophy for debating and litigating constitutional law. (P114)
A militant NRA combined with a forest’s worth of law review articles built inexorable momentum to press the court to views of the Second Amendment. Key government agencies began to shift first. Republicans took control of the U.S. Senate for the first time in twenty-four years in 1981. Utah senator Orrin Hatch became chair of a key Judiciary Committee panel. He commissioned a study, “The Right to Keep and Bear Arms.” In a breathless tone it announced, “What the Subcommittee on the Constitution uncovered was clear–and long lost–proof that the second amendment to our constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The cytologist discovering invisible writing on the back of the Declaration of Independence in the Disney movie National Treasure could not have said it better. (P117)
The individual rights argument was starting to win in another forum: public opinion. Citizens were sharply divided on gun laws. By early 2008, according to the Gallup poll, 73 percent of Americans believed the Second Amendment “guaranteed the rights of Americans to own guns” outside the militia. In 1959, according to a Gallup poll, 60 percent of Americans favored banning handguns; that dropped to 41 percent by 1975 and stood at 24 percent in 2012. The iea of a Second Amendment right began to become synonymous with opposition to gun control, with conservatism, even with support for the Republican Party. (P119)
Heller Ruling: On the last day of the term June 2008–in the final opinion announced before the presidential election–the Supreme Court issued its ruling. Five to four, the justices voted to strike down the capital’s gun law. Chief Justice Roberts, Kennedy, Thomas, and Samuel Alito joined Scalia’s opinion. Justices Stevens, Ginsburg, Souter, and Breyer dissented. For the first time, the Court ruled that the Second Amendment recognizes an individual right to own a gun unrelated to militia service. Scalia wrote the opinion, a sure sign the Court would move aggressively to the right. Roberts had done something Rehnquist never would: he assigned Scalia the job of writing the big one. It remains Scalia’s most important majority decision…Scalia does not seek to explain the Framers’ original intent: this is emphatically an opinion focused on a closely parsed text, regardless of what it meant to whose who wrote and ratified it. The Second Amendment, he begins, “is naturally divided into two parts: its prefatory clause and its operative clause.” But he has a surprising way to deal with the prefatory clause, the homage to the “well-regulated militia being necessary to the security of a free state.” so important to the Framers. He skips right over it. Scalia simply lops off the first half of hte amendment, just as in the bowdlerized quote in the NRA headquarters lobby. What counts is the second half. (P121)
The Court’s ruling overturned two centuries of precedent. Usually justices acknowledge that fact, as when Brown v. Board of Education overturned Plessy v. Ferguson. Instead of being intellectually honest about that, Scalia’s opinion insists it did no such thing. Most relevant is the Miller case from 1939, which found that the Second Amendment did not protect guns not used for “military purposes.” The majority odes not say it overrules Miller. Rather, it explains that Miller simply held that the sawed-off shotgun was not covered by the right: the “type of weapon at issue was not eligible for Second Amendment protection.” With a shrug the justices deem it “unsurprising that such a significant matter has been for so long judicially unresolved.” (P125)
The Heller opinion offers another clue for future courts: weapons that are “dangerous and unusual” can be banned, but those that are “in common use” cannot. (P126)
The New Yorker’s Jeffery Toobin summarized it well: “Scalia translated a right to military weapons in the eighteenth century to a right to handguns in the 21st.” (P127)
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…Heller had proclaimed a right, one individuals can sue to uphold–but agreed that there were limits to that right. Our Constitution is replete with such rights. They are important but subject to boundaries. Repeatedly courts turned to the First Amendment. The right to speak is fundamental, but limited or regulated under myriad circumstances. You are not entitled to commit libel, or to turn up a sound truck to eleven at three in the morning. As Justice Holmes wrote, you cannot falsely shout fire in a crowded theater. The First Amendment does not enable you to stage a parade without a permit: government cannot ban your political speech, but can set rules on “time, place and manner.” Courts treat campaign contributions to lawmakers as a form of speech, but have upheld limits on the size of the gift in an effort to ward of corruption. (P145-146)
Current law requires that gun purchasers undergo an instant computerized background check. Some two million purchases have been stopped. But weapons bought at gun shows or sold by private parties generally are not covered. Legislation brought to the floor of the US Senate would have expanded the system to include gun shows. Here there was a ready historical analogy, the favored mode of argument: The Framers prohibited dangerous people from having guns. The NRA one had supported background checks, partly as an alternative to longer waiting periods of gun bans. In the spring of 2013, expanded checks were supported by upward of 90 percent of the public. (P155-156)
The number of guns in the United States has continued to climb. Firm numbers are unavailable, because unlike autos, guns are not registered. Today there are estimated to be as many as 270 million civiliean firearms in the country. That is three times as many guns per person as Canada, and fifteen times as many as England. But the ranks of gun owners have not swelled. In fact, they have dropped sharply. For Four decaded, the General Social Survey, a study regularly conducted by the National Opinion Research Center, has asked respondents whether they have a gun at home. Every decade, gun ownership tates have slid, from half of all household in the 1970s to 34 percent. Today only one in five Americans reported owning any guns at all. Gun ownership has shrunk in all regions, including the South and West, where firearms imbue the culture. Three of four city dwellers don’t have a gun. Nearly hal of people who live in rural areas don’t, either. (P161)
Gun violence is down. To be clear: Murder and violence remain higher in America than the rest of the industrialized world. A gun policy center at Johns Hopkins University concluded, “although there is little difference in the overall crime rates between the United States and other high income countries, homicide rate in the US is 7 times higher than the combined homicide rate of 22 other high income countries.” Even so, the gun homicide rate dropped by nearly half from 1993 to 2010. “The victimization rate for other violent crimes with a firearm-assaults, robberies and sex crimes-was 75% lower 2011 then in 1993. (Pew Research Center, P 162)
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 CDC’s budget for the study of gun violence. Research funding in and out of government simply dried up. According to The New York Times, The centers also ask researchers it finances ti give it a heads-up anytime they are publishing studies that have anything to do with firearms. The agency, in turn, relays this information to the NRA as courtesy.” In 2011, Congress extended that ban to the NIH as well. Peer-reviewed, valid scientific evidence is in short supply, at the very moment courts will be requiring it.
Some of the more effective current measures to curb gun violence seemed the most impervious to constitutional challenge. Law-enforcement still can keep guns from the hands of dangerous people, as Heller made clear. These prohibitions could be strengthened. For example, many states do not bar from gun ownership individuals with misdemeanor convictions or who were convicted of felonies in juvenile court. Yet these individuals are significantly more likely to use guns in violent crime later.
Thumb print recognition could be a foolproof form of trigger lock to prevent children from accidentally shooting a playmate. We do not know if future courts regarding any or all of these as impermissible restriction on a sacred right. But the very worry about litigation could well deter local governments from embarking on policy innovation. Criminal justice policy is rarely ever solely about what works. Gun control, as much as been rights, can become a matter of faith, or competing fear. But to the extent possible, society gains when it is able to weigh costs, benefits, and competing claims for safety policy… Increasingly, it is clear that the gun issue is not one of the evidence based public safety policy, but of culture.
The tradition of military service behind the second amendment-which helped create the gun culture in the post-World War II years-has faded. Relatively few of them and who wear camouflage and accessorized assault weapons have ever served a minute in the military or heard a shot fired and anger.
The Pew Research Center presents some startling statistics: “The general profile of gun owners in America differs substantially from the general public. Roughly ¾ of gun owners are men, and 82% are white. Taken together, 61% of adults own guns are white man. Nationwide, white men makeup only 32% of the adult US population.” Current owners are nearly twice as likely to identify as Republicans as non-gun owners.
1 compelling study explored the split between those will pose and back gun control. It suggests the divide goes even deeper than political ideology, religion, region, or race. What matters is with people fear: R citizens more afraid of gun violence or of being exposed to a predator without the ability to protect themselves? The way people perceive that risk flows from basic world view. Those were fiercely individual lists, or who are especially imbued with respect for authority (including the military), are more likely to oppose gun restrictions.
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 citizens soldier bought their own military weapons and store them at home, and with the idea of the 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.
In all the ways that help us understand the role of guns, 21st Century America differs profoundly from the time of the frameless. Weapons are far more destructive (a point acknowledged by the most thoughtful gun rights adherents).
Today, we rely on the professional police departments to protect us from crime and unrest, and a United States Army to protect us from overseas threats-all institutions unknown to the founders. The idea that we should arm the population so they can mount an instruction against the government, just in case, seems absurd. Sadly, the sense of civic duty that impelled Americans to bear arms for the country is largely thing of the past, too.
As Americans, we take for granted the notion that a paragraph cobbled together over 2 centuries ago, for reasons historians debate fiercely, would constrain how society protects himself today.
Judges are increasingly willing to overturn the laws enacted by generations of Democratic elected politicians. A too easy recourse to rights language, the decoupling of rights from responsibilities, and the turn to the courts as the first resort all have consequences.
Perhaps judicial overreach will remind left and right that our constitutional system, it is far better for fundamental questions to be resolved, if at all possible by the push-and-whole of politics.
How the Supreme Court sees the constitution is ultimately up to us a full scan of American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers. After all, the Framers added the second amendment to the constitution not because they solemnly believed it necessary, but as a concession to popular discontent. From the beginning, American politics was marked by triangulation, compromise, tactical retreats.
The reason the court has pronounced that limited right is not because the framers of the second amendment intended to confer it. Nor is it because of a dictionary from 1730, or a state Court judicial interpretation from 1830, or even a Supreme Court case from 1939. Rather, it is because the people today believe there is such a right. The country has evolved-the constitution is living, as it were–and the widespread acceptance of some form of gum ownership is part of the way Americans think. Not then, now. Heller can be justified not as original his him, but has something more wounded in commonsense: It reflected a popular consensus won by focused activists.
Abraham Lincoln said, “Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he whom molds Public sentiment goes deeper than he who enactments statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.”
A living constitution does not discard the spirit of the document, but seeks to apply its timeless principles to modern challenges that could not have been imagined by the Framers or their contemporaries.
We can draw inspiration from perhaps the least debated phrase in the second amendment. Least debated, but perhaps most important. “The right of the people.”
When the courts intrude-to rewrite and rewire public policies in service to a particular constitutional theory or ideological approach-they can do damage to democracy and the law. When they standby to prudently intervene on behalf of those who need their protection, and who cannot get in through the normal political processes courts immeasurably strengthen the country. Conservatives argued that for years: Liberal’s are learning again.