As a citizen of the United States, do I have the right to massacre a large group of my fellow citizens?
Of course not.
However, over the last two decades, a number of individuals have done exactly that; the settings of each incident now existing infused with terror (consider the impact of the words Columbine High School, Pulse Nightclub, Orlando Florida, or Sandy Hook Elementary School).
One would think that enacting legislation to prevent such atrocities would be an enormously smart career move for any smart politician. Yet although senators and representatives routinely offer thoughts and prayers for the victims nothing of substance has been done to make large public settings any safer from the potential terror firearms can cause.
While the international community has trouble understanding this, citizens of America realize that for many politicians the words gun control can actually result in political suicide.
The reason? The United States is divided in its belief over the rights of individual citizens to own guns.
One side claims that this right is universal and unbreakable, while the other routinely argues that this claim is a misunderstanding of the U.S Constitution. And, surprisingly, both sides rest their arguments on an oft-quoted amendment of the US Bill of Rights specifically, the Second Amendment.
The history of the Second Amendment is long and twisted; the Amendment itself has been subject to repeated scrutiny and elaboration, and the way in which its interpreted today is a relatively new way of understanding this statute written in the late 18th century.
Its hard to understand exactly whats at stake without a detailed look at why it was originally written, how it has been interpreted over the last two and a half centuries, and what it currently seems to imply.
The Second Amendment to the U.S Constitution is surprisingly short. Its exact wording is:
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.
Thats it.
In terms of wording, this statute is one of the most confusing. Its deceptively short, rather vague, and employs unusual grammar. Yet over the course of US history, these 26 words have become some of the most controversial ever written.
In addition, theres nothing written specifically about gun regulation, and notice how the phrase right to bear arms is expressly connected to that of a well regulated Militia.
As historian Michael Waldman comments, Lets be clear: the eloquent men who wrote we the people and the First Amendment did us no favors in the drafting of the Second Amendment. One reason it was ignored for so long is that it is so inscrutable. [1]
The current debate about gun control versus gun rights has been more harsh and malicious than necessary, precisely because of the wording and grammatical structure of the writing and the ways in which its been interpreted over the years.
As the history of the Second Amendment shows us, this very obscurity has also been used to excuse some of the darkest moments in United States history. States like Oklahoma and Pennsylvania observe Second Amendment Day as a public awareness day whose purpose is to raise awareness of and support for the fundamental right to keep and bear arms, which is codified in the Second Amendment to the United States Constitution. This amendment, along with the nine others ratified on December 15, 1791, comprise the U.S Constitutions Bill of Rights.
After the Revolutionary War, the United States existed for a few years under a very simple government, bound by a document known as the Articles of Confederation the first set of rules for the new country that were created in 1777 and ratified in 1781.
They are remembered all these years later, chiefly because they were the origin of the new countrys name: the United States of America. In addition to the moniker, the Articles of Confederation set out rules for the interplay between the federal and state governments.
However, so much power was given to the states that national jurisdiction was essentially meaningless. Because all federal rules needed to be approved by a supermajority, one small state could and did easily block treaties, legislation, and the push for one national currency.
In addition, the central bureaucracy was unable to collect taxes and thus did not have the money needed to carry out its duties. In essence, the newly-formed United States had a figurehead government at the center, but one that was unable to function.
The U.S Constitution, which was drafted in 1783, was then written for the purpose of strengthening the central government. But since many people in early America opposed the idea of a strong central government the writers in favor of the document found themselves taxed with a new challenge shortly after writing the U.S Constitution: ratification.
They needed two-thirds of the original thirteen states to agree to adopt the new document as the rule of the land.
Having recently broken away from what they saw as the tyranny of Great Britain, individuals were protective of their freedom and touchy about any infringement on private liberties. Moreover, each state had questions and concerns specific to its individual needs, in addition to not wanting to cede power to the federal government.
For some time, it appeared that the country would break apart rather than come to a united agreement on the powers of the central government.
In order to address these issues, the Founding Fathers wrote up a Bill of Rights that specified protections for individuals and for states. These first ten amendments were included with the rest of the document, which was finally ratified in 1791, and played a big role in securing the two-thirds majority needed to ratify the U.S constitution.
Most of the points in the Bill of Rights deals with individuals freedoms and the rights of those accused of breaking the laws, yet the Second Amendment the second point on the Bill of Rights deals directly with gun ownership.
So why did the Founders consider it necessary to include this in such an important document? Well, the answer is quite complicated, and its one that the nation is still trying to figure out.
The American Revolution started in part because of taxation issues. The colonists protested against what they perceived as unfair and oppressive treatment, while the British response was to stop the importation of firearms to the New World.
In retaliation, colonists began to smuggle guns in from the Continent (meaning Europe), stockpiling extras for a day when they would need them to fight the increasingly vindictive Crown.
As is known from history classes, tensions rose until the British sent troops to quell insurrection, only to find an unanticipated organized response. Beginning in Boston, the Revolution was the first of its kind in history truly a shot heard around the world.
In addition, at the time that the U.S Constitution was written, the United States was overwhelmingly rural. The frontier, with its wild animals and Native American tribes, existed neck-to-neck with coastal settlements. Families hunted for their protein sources, and each small hamlet protected itself collectively from robbery or worse; citizens needed guns in order to survive.
However, because gunpowder was flammable and guns expensive, firearms for each village were kept in a centralized location. This, as well as the legacy of the Revolutionary War, was the state of affairs that led the Founding Fathers to associate gun ownership with the idea of a well regulated militia where armies were federal affairs, militias protected local settlements.
The document that we now know as the United States Constitution was written during the U.S Constitutional Convention of 1787. Its chief purpose was to grant enough strength to the federal government to be able to function, but its writers were then faced with the challenge of convincing each state to buy into the idea.
James Madison, the chief writer of the U.S Constitution, witnessed the difficulty of getting the Constitution ratified. So, he was inspired to set up the Bill of Rights as a way to balance the power of the central government with that of individual states.
This addition paved the way for ratification, and the country was able to move forward.
Reading through the entire Bill of Rights gives us an interesting vantage point on the difficulties of establishing a pluralistic country. The four freedoms stated in the First Amendment affirmed the prerogative of citizens to pray, speak, and assemble as they chose, and to petition the federal government for a redress of grievances. [2]
These of course have become cherished United States ideals, and a corollary to the ideas expressed in the Declaration of Independence. The original shot heard around the world was the conception of a united citizenry choosing its own government this was then followed by the almost unthought-of idea that those citizens could then choose their style of living and interacting with that government, without fear of retribution.
After specifying these individual freedoms, the Bill of Rights then turned to protections afforded to citizens from the government itself.
The Second Amendment spoke to the ability of individuals to form wel regulated militias. The Third prevented the federal government from moving soldiers into private houses without the consent of the owners. The Fourth Amendment defined unreasonable search and seizure, and prohibited it. The Fifth, Sixth, and Seventh Amendments protected against self-incrimination and stated the right to trial by a jury of ones peers.
These were, again, unique, as they specified the limitations of central power in a way that no other country ever had.
Following the list of protections, the Bill of Rights closed with two amendments meant to protect the power of individual states the Ninth Amendment states that these listed rights are not intended to supplant other rights and so not enumerated.
The Tenth Amendment makes the claim that:
the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.
These last two ideas point to an important issue in United States politics: the balance of power between state and national governments. The Bill of Rights as a whole became a symbol of the American experiment; combined, the ten statutes have achieved a sacred status and are deemed untouchable.
Taken in context with the other rights listed, the Second Amendment can be understood as the establishment of a fundamental belief that the political body may arm itself without fear of search, seizure of weapons, or personal arrest that neglects the due process of law.
In other words citizens did not need to fear a repeat of the abuse they had endured at the hands of the British.
The individual right interpretation of the Second Amendment first arose in Bliss v. Commonwealth (1822), which evaluated the individual right to bear arms in defense of themselves and the state. The right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment.
Also during the Jacksonian Era, the first collective right (or group right) interpretation of the Second Amendment arose. In State v. Buzzard (1842), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution. The two early state court cases, Bliss and Buzzard, set the fundamental dichotomy in interpreting the Second Amendment, i.e., whether it secured an individual right versus a collective right.
Because of the rural nature of the country and the need to hunt for food, firearms were not in and of themselves thought of as an extension of personal freedoms, but rather as necessities of daily living. The Amendment was written to guarantee against government tyranny, not to prohibit the regulation of firearms.
As the years went by, the United States began to grow. It had always been a pluralistic country, but expansion exacerbated the clash of cultures created by the differences between new citizens coming into the country.
Originally settled by Puritans, Quakers, freethinkers, and non-Christians as well as members of the Church of England (which soon became known in the United States as the Episcopalian Church) the population also grew to include enslaved peoples of African descent, Native Americans trying to affirm their right to exist, and a continuing stream of immigrants bringing still more differences to the table.
How does one organize a country with a plethora of differing customs? How does a country balance the need for a strong central government with the differences present in each state?
In the first half of the 19th century, these questions were subsumed into a few overriding concerns. Chief among these were Western Expansion and the question of slavery. As the United States rocked its way towards the Civil War, the Second Amendment and all other rights sat quietly amidst the larger questions of who was protected under the U.S Constitution.
In other words, who was considered a citizen, and why?
For the better part of the first 100 years of Americas life, the Second Amendment or, as we know it, the individual right to bear arms had little impact on American political life.
However, in the 1860s, everything changed. The nation plunged into civil war, ushering in a new era.
Interestingly, however, the laws created to secure the individual rights of newly freed slaves set the stage for a unique interpretation of the Second Amendment that has helped shape the debate we continue to have today.
On April 9, 1865, Generals Ulysses S. Grant and Robert E. Lee met at the Appomattox Court House, in the state of Virginia, to draft out a resolution that would bring an end to the Civil War.
As a result of the Southern surrender, the United States was one country once again, and the 1863 Emancipation Proclamation which freed slaves in rebellious states during the war was enshrined into law with the passage of the Thirteenth Amendment in 1864.
With this hurdle overcome, President Lincoln was determined to welcome the Confederacy back in a way that was neither harsh nor disciplinary.
On March 5, 1865, he stated in his Second Inaugural Address:
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nations wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.
Lincoln wanted to reconcile the nation, not punish the South. And his plan for Reconstruction was built in such a way so that it would do just that reconstruct the Souths way of life, a large part of which involved providing guarantees for the individual rights and liberties of Black Americans.
This led to the eventual passage of the Fourteenth Amendment, and this addressed a number of issues in its five sections. Some of the most important clauses detailed restrictions on the ability of former rebels to hold office, as well as the powers of Congress to enforce the amendment.
However, the most famous is section one, which famously includes the following language:
No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty, or property without due process of the law; nor deny to any person within its jurisdiction equal protection of the laws.
The passage of this amendment led to a rapid growth and progress in the levels of Black political participation but this was short-lived. Lincoln did not live to ensure his plan, nor witness the passage of the Fourteenth Amendment, as six days after Lees surrender, on April 15, 1865, the president was murdered.
A stunned country confronted with its first political assassination turned vicious.
Reconstruction became a time for many Northerners to make money off the broken South, and to force it to live according to their victorious convictions.
The South, which eventually wormed its way free of Northern oversight, sought to reestablish its old way of life one in which Blacks were relegated to the trenches of the social order and worked hard to fight this interference from the North, which it eventually accomplished through the Compromise of 1877.
From there, an issue that had been at the heart of American political conflict since the nations inception was given new fuel: the debate over the power of the states in relation to the federal government.
During the time of the Civil War and the Reconstruction after it, the Second Amendment was not under the spotlight that shines on it today.
The Fourteenth Amendment was seen as an extension of the original ideals of the Bill of Rights, providing protection to newly enfranchised ex-slaves. It included specific provisos that overtly stated that the liberties afforded by the U.S Constitution and the Bill of Rights now protected African Americans and all other people living in the United States.
This means the Fourteenth Amendment was the first of its kind to explicitly guarantee rights to all people, not just a select group of people considered citizens. Naturally, this placed limits on a states ability to govern itself which happened to be a critically important issue to a section of the country vitally consumed with the idea of states rights.
The South bitterly resisted what it saw as an infringement on its right to govern itself through the work of individual states. A violent backlash ensued, causing the organization of groups such as the Ku Klux Klan, which promoted themselves as militias protected under the Second Amendment, but were, in reality, more akin to terrorist associations based on their actions burning crosses and midnight lynchings were just two ways of demonstrating power. The chief point of the Klan was to asset White dominance and enforce the continued domination of former slave owners over former slaves.
With the focus of the federal government turning away from the ideals of Reconstruction, life in the South gradually returned to the Antebellum mores.
By the end of the 1860s, the abolition of slavery really only meant the establishment of a nominally free Black community. But these communities were economically, educationally, and politically underprivileged sure, citizens had been afforded the right to vote, but what good was that when they were prevented from doing so by their lack of personal property, ability to read the ballot, or knowledge of governmental functions?
This, then, was the state of affairs in the United States after the Civil War. When the Supreme Court first considered the Second Amendment, it did not do so because of concerns over gun rights. Instead, it deliberated over a case that focused on Fourteenth Amendment rights, specifically looking at African-American safety.
The Second Amendment attracted serious judicial attention with the Reconstruction era case of United States v. Cruikshank (1876) which ruled that the Privileges or Immunities Clause of the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments, stating that the Second Amendment has no other effect than to restrict the powers of the national government.
On Easter Sunday, 1873 ironically two years after the formation of the National Rifle Association (whose importance will soon become apparent to this tale) a White militia made up of members of two White Supremacists groups, the Knights of the White Camellia and the Ku Klux Klan, murdered over one hundred and fifty African-Africans in the town of Colfax, Louisiana [6].
In response to what has become known as the Colfax Massacre, three White men were convicted.
Since it occurred in the wake of the 1872 state elections in Louisiana, and was motivated by its result (as it was one of the first elections that saw widespread Black voting, something unthinkable in the South), federal authorities interpreted the actions of these individuals as a violation of the 1870 Enforcement Act a law that gave the federal government the right to enforce the Fifteenth Amendment, guaranteeing citizens the individual right to vote regardless of race, color, or previous condition of servitude.
Prosecution thus proceeded accordingly.
Two trials took place in 1874, and in the second, three men were convicted although the charges were immediately dismissed by the presiding judge. The federal government then took the issue to the Supreme Court in a case known as United States vs. Cruikshank.
In it, the Supreme Court ruled that the 1870 Enforcement Act only applied to states and not individuals, and that the federal government did not have jurisdiction over individuals attempts to infringe the rights of other individuals.
Instead, those who felt their individual rights had been limited by others would have to appeal to states and municipalities for protection and not the federal government.
The Supreme Court extended this interpretation to both the First and Second Amendment, essentially saying that both represented inherent rights granted to people and that their existence in the U.S Constitution was solely to prevent the federal government from limiting them. The exact text from the ruling in regards to the Second Amendment reads:
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.
However, the Fourteenth Amendment seems to contradict this notion by saying that the states cannot limit the rights of any citizen that are afforded by the U.S Constitution.
But in United States vs. Cruikshank, the Supreme Court circumvents this idea by stating that these rights were not explicitly granted by the document but rather protected against infringement by the federal government [8].
This is an incredibly narrow interpretation of the U.S Constitution one that essentially says the states can more or less do as they please when it comes to the individual rights of people.
It gave individual states the power to choose whether or not to prosecute events such as the Colfax Massacre, opening the door for legally-sanctioned segregation as well as even more violent intimidation of newly-freed Blacks trying to integrate into American society.
This decision as many Supreme Court decisions are was politically motivated, and it had a dramatic impact on US history, particularly in terms of race relations.
As for the Second Amendment, this case is historic because it marked the first instance in the history of the United States in which the Supreme Court offered a direct opinion about the right to bear arms.
That opinion that it only served to protect citizens against overreach from the national government; that the states were free to address it and other rights written in the U.S Constitution as they pleased would pave the way for state and local gun laws and would shape the debate about this issue in the 20th century.
The Second Amendment received a second review a few years later, when Presser vs. Illinois was heard by the Supreme Court in 1886.
A year or so earlier, the state of Illinois had ratified a law restricting public parades where participants carried firearms; Dave Koppel of the Independence Institute notes that:
One prong of the governmental effort to suppress organized labor was a ban on armed parades in public; Illinois was one of the states that enacted such a ban, making it a crime for bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law
The plaintiff a man by the name of Herman Presser had marched in a parade carrying a firearm; the Chicago court noted that he did unlawfully belong to, and did parade and drill, with arms without having a license from the Governor, and not being a part of, or belonging to, the regular organized volunteer militia of the State of Illinois. [10]
See more here:
2nd Amendment: A Complete History of the Right to Bear Arms