In my previous blog post, I discussed why I think America should revise its gun laws by adding more comprehensive background checks and limiting access to assault weapons and large-capacity magazines.
In this post, I will discuss one of the most prominent arguments against gun control: that the Founding Fathers passed the Second Amendment in order to prevent all gun regulations and defend against tyranny.
There are several practical difficulties with this argument. For one, America’s political system may be dysfunctional in various ways, but it is not (and is in no danger of becoming) tyrannical. America has strong civic institutions, watchdog groups, and an independent media. It spreads governmental power across various branches and levels. And for as much as some people complain about the lack of choice in elections, America still has a generally competitive system of free elections in which citizens can select their representatives.
Actually, many common complaints heard today are more indicative of democracy than any nascent tyranny. Tyrannies, by their very nature, rarely have trouble acting. In contrast, today’s American government seems caught in an almost constant stalemate. Even the health care bill, which many Americans dislike, was only passed after Congress had considered the issue for more than 60 years.
But assume for a moment that America is, somehow, teetering on the edge of tyranny. There is no way that assault weapons are going to protect people against the world’s largest and best-equipped military. If the Second Amendment is meant to protect against tyranny, then Americans should have the right not only to purchase assault weapons, but all manner of military weapons, such as rocket launchers and nuclear missiles. Anything less would put the civilian population at a distinct disadvantage against the American military.
This is, of course, fairly ridiculous. Society draws reasonable lines detailing acceptable behavior all the time, such as limiting access to military-grade weapons to the military. I would suggest that we similarly limit access to assault weapons in order to help stop mass shootings.
Far from endorsing violent uprisings against an elected government, some of the Founding Fathers spoke out vigorously against it. In 1794, President George Washington marched to western Pennsylvania to put down a tax revolt. The American Revolution was over and the Constitution had been adopted, guaranteeing a republican form of government. Now that Americans were represented in their government, political struggles had to replace armed conflict. As Washington proclaimed before he led several states’ militias out to confront the rebels:
And I do moreover exhort all individuals, officers, and bodies of men to contemplate with abhorrence the measures leading directly or indirectly to those crimes which produce this resort to military coercion… and to call to mind that, as the people of the United States have been permitted… to elect their own government, so will their gratitude for this inestimable blessing be best distinguished by firm exertions to maintain the Constitution and the laws.
Additionally, gun laws are not unprecedented expansions of governmental power. They have existed throughout most of American history. During the Founding Era, gun laws allowed government to track gun ownership, regulate gun powder storage, prohibit gun use in certain areas, deny gun ownership to certain individuals. A Boston law, for example, prohibited people from bringing loaded guns indoors. Other laws prohibited black people or people who refused to swear allegiance to the revolution from owning guns. In the years following the War of 1812, some states even banned carrying concealed weapons.
That guns were regulated during the Founders’ lifetimes should not be surprising. The Second Amendment frames gun rights in terms of trained militia service, rather than in terms of an absolute right:
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.
Supreme Court Justice John Paul Stevens meticulously documents the legal and historical context for a military framing of the Second Amendment in his District of Columbia v. Heller dissent. He notes, among other things, that the Second Amendment’s drafting history discusses gun rights in terms of military service, not in terms of an individual right. At the time, the Framers’ main concern was that Congress would disarm the militias. The Second Amendment prevented that.
Stevens also points out that James Madison was working with numerous proposed amendments while crafting the Second Amendment’s final wording. Some of these proposed amendments were much broader and more clearly established an individual right to own a gun. Madison instead chose the wording that placed gun rights in terms of military service.
So the Founding Fathers were aware of existing gun regulations and also couched the Second Amendment in terms of military service and states’ rights.
However, the history of gun laws in the United States does not end there. Americans continued to pass gun laws where and when they deemed necessary. Take the “Wild West,” for instance. Although films often portray the American West as a lawless place plagued by gunslingers and outlaws, the truth is actually quite different. Gunfights were rare, but gun laws were not. Frontier towns often banned concealed carry and required visitors to leave their guns with the town marshal until they departed.
In fact, according to Adam Winkler, a Constitutional law professor at UCLA:
Frontier towns in the west — places like Deadwood, S.D., and Tombstone, Ariz. — had the most restrictive gun laws in the nation… And these laws were enforced. The illegal carrying of a firearm was the second most common basis for arrests in the old west — right behind drunk and disorderly conduct. Gun violence was also rare, and gunfights extraordinary. Frontier towns averaged less than two homicides per year.
The infamous gunfight at the O.K. Corral actually broke out because law enforcement sought to enforce a Tombstone ordinance banning people from carrying firearms in the town.
Americans have passed gun laws throughout history when they felt the situation demanded it. It seems that pragmatic gun regulations are as American as the right to bear arms.
“Nation’s founders balanced gun rights with public safety,” Adam Winkler, UCLA Today.
“The Secret History of Guns,” Adam Winkler, The Atlantic.
“District of Columbia v. Heller: Stevens Dissent,” Justice John Paul Stevens.
“Gun laws were tougher in old Tombstone,” Bob Drogin, LA Times.