Amending History

There is a little document that a lot of Americans really enjoy fighting over, and for once we’re not talking about the draft sheet for your fantasy football league. The United States Bill of Rights were the first ten amendments added onto the US Constitution after its ratification, and much like the Bible or a Quentin Tarantino movie people try to use it as justification for doing almost anything. Now, like all good Americans we have all 10 amendments memorized -okay maybe only like 4 of them- but we all have our favorites. For example, we know that Todd particularly enjoys the Third Amendment, because every year during the Memorial Day parade, when members of the military band ask if they can use our bathroom, he screams “stop violating my civil rights,” and slams the door. Others out there may enjoy the First Amendment or the Sixth Amendment, however, most people these days are doing a lot of talking about the Second Amendment. So we thought it might be good to get a little historical context on what the Second Amendment was and how it has shaped the national debate currently going on around us.

Our Forefathers Can Beat-Up Your Forefathers
The full text of the Second 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. Odd capitalization aside, we often find ourselves discussing the second part of that sentence but forgetting the first part. The ambiguity of the sentence has led to more than a few arguments. It is just another thing we can blame on our Founding Fathers, because the argument we are having today still echoes the argument they had more than 200 years ago.

Before the Constitution was ever ratified the men who created our nation found themselves divided into two camps, Federalists and Anti-Federalists. Federalists essentially favored the Constitution and a stronger central government while Anti-Federalists favored stronger rights for the States. Sufficed to say, the Federalists won in the end, but not without a few compromises, and the biggest contention was over the right for the new US Government to raise a standing army. Federalists argued that a standing regular army was needed to protect the interests of the nation. The Anti-Federalists believed that a standing army, loyal to the government, was the first step toward tyranny. They resolved the debate by granting Congress the ability to raise an army, but could only fund it two years at a time. However, the second and more crucial safeguard against the oppression of a Federal army was the idea of militias.

Local militias were something the colonists were very familiar with. Colonial militias had existed for years and had fought with mixed success in the American Revolution, but State and local militias in colonial times were a lot more than just what the National Guard is today. They also served as the nations first paid police force. Aside from elected Sheriffs, militia men were tasked with bringing dangerous criminals to justice. So when the Bill of Rights was finally written in 1789 one of the first amendments passed by the House and Senate was for the establishment of State militias as a check against the existence of the Federal army and as a lawful body to help keep local peace. That makes sense, because at the time our Founding Fathers were more preoccupied with States rights versus Federal rights rather than if people could own guns.

The NaRrAtion of the Law
Even the original wording of James Madison, who wrote the Bill of Rights, seems to be more focused on the military aspect rather than a private citizen’s “right to bear arms.” Before it was altered by the Senate the amendment originally read, A well regulated Militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms. Madison even included a clause for conscientious objectors, which again points to the fact that the amendment was more focused on the military aspect rather than gun ownership. However, we feel compelled to point out that the Founding Fathers may not have specifically pointed to the “right to bear arms,” but there is also evidence that in their day it was considered a natural and normal right and they may not have felt the need to codify it more than they already did. Thus, the “right to bear arms” part cannot be completely negated.

Going forward there became two narratives concerning the Second Amendment. Up until about the 1970s and 1980s, the narrative of “collective rights,” or “states rights” dominated the political and judicial thinking of the Second Amendment. This narrative argued that the amendment only protects gun ownership of the States, and not individual private citizens. Basically, it argues that the Second Amendment is meant to be interpreted as the Constitutional right of each State to establish National Guards that are controlled and armed by State officials. Fifty years ago, no one was having a debate about the right to gun ownership. Then in the late 20th century the narrative suddenly shifted to favor what is known as the “standard model,” which argued that the amendment was meant to be dominated by the second part of the sentence, in that it really grants individual citizens absolute rights to own and keep arms. This narrative became popular around 1977, when a little known organization called the National Rifle Association went from being a group that promoted gun safety to a group that suddenly began to lobby for gun ownership.

It is worth noting that even when the NRA started proclaiming that the Second Amendment was about the “rights to bear arms,” the conservative Supreme Court Chief Justice at the time, Warren R. Burger, openly mocked the idea as “one of the greatest pieces of fraud on the American people.” He thought it was a laughable interpretation. Yet, the NRA kept pushing, and their new narrative was bolstered by the election of Ronald Reagan, a pro-gun rights President, and by the gun manufacturers themselves who gave large sums to make sure that the people in Congress got behind it too. Still it was not until 2001, in the Fifth Circuit Appeals Court, in the case of The United States vs. Emerson, that any judge even voiced acceptance of the the idea that the Second Amendment protected the rights of individual gun owners. Even then, the opinion was not legally backed until 2008 in the case of The District of Columbia vs. Heller, when Antonin Scalia ruled that the government did not have a right to infringe on the ownership of handguns.

An Infallible Right
In 2011, gun manufactures made 4.3 billion dollars, thanks in no small part to the new interpretation that the American public had come to accept about the Second Amendment. Suddenly, it was American to own a gun and un-American to want to regulate guns, and they had a vested interest in keeping it that way. Yet, even during the entire period when the majority of Americans accepted the idea that the Second Amendment was about regulating militias, gun ownership was not illegal, but by changing the dialogue and making gun ownership a right -on par with free speech and religion- gun ownership went from “not being illegal” to “protected by the law” and those are two very different things. Gun ownership suddenly became so sacred as to be untouchable, but we feel compelled to point out that no other right granted by the constitution enjoys such unfettered legality.

George Washington famously said, “Individuals entering into society, must give up a share of liberty to preserve the rest.” In other words, yes we have rights as citizens but we have to understand that when those “rights” interfere with the lives and rights of other citizens than we have to recognize the need for moderation. Thus, it is illegal to yell “fire” in a crowded theater, or to say “bomb” on a plane when there isn’t one, because those are not examples of free speech. They only serve to put others at risk. We have laws limiting or mitigating the effects of almost every amendment in the Bill of Rights, so why is it suddenly so unfathomable to have laws limiting gun ownership, regardless whether the Second Amendment was meant to refer to that specific right or not.

A lot of the problem goes back to the way the amendment was worded. People who claim it refers to the individual gun ownership model argue that the first part of the sentence, A well regulated Militia, being necessary to the security of a free State, is meant as a justifying preamble to the second half, the right of the people to keep and bear Arms, shall not be infringed. And that could be true, but it is worth mentioning that no other amendment in the Bill of Rights starts with a justifying preamble. Everything else just states what it means to say without beating around the Constitutional bush. Still, it is worth remembering that the words are in there, and we know that the Founding Fathers did see gun ownership as a natural part of life. Yet, to them guns were single fire muskets that required a full minute of reload time, and that is also worth remembering.

The Right to Bear History
Times change, opinions change, and laws have to change to change with them. It is ironic how worried our Founding Fathers were about the existence of a standing United States Army, and yet there is not a single person today who still argues if the USA should have a standing army. Even more ironic Federalists like Washington, Adams, and Hamilton did not want a Bill of Rights at all, believing that the Constitution was enough to guarantee the freedoms of the people. They believed that codifying what they saw as the natural rights of man would ultimately make those rights “colorable” and open to be misinterpreted and used for demagoguery, kind of like exactly what is happening today with the Second Amendment.

Lastly, our Founding Fathers were men, who fought and argued, and bickered same as we do today. They compromised and struggled. They were not divine beings who granted us a document from the almighty. They were not perfect, and you do not need to look any further for proof than in their Three-Fifths Compromise. They also could not predict a future of drones, tanks, or assault weapons, and that is why they made the Constitution a living a document, one that could change with the times and be amended. They knew that future generations would face new problems and need to find new solutions. So, regardless, of how they, or the NRA, or you, or this website chooses to interpret the Second Amendment, it is also worth remembering that all those famous historical founders that stare at us from the fronts of money, entrusted us to make laws and interpret them to fit today’s world, and not the world of the single shot musket.