The Second Amendment cannot mean what the NRA
and right-wing Justices on the Supreme Court have said it does.
Would you want to keep a musket in your house?
Checking your guns at the Tombstone city limits.
Burton Weltman
Note: I am writing this introduction on May 25, 2022 and I am reposting an essay that I first wrote some eight years ago. Yesterday, yet another mass school shooting took place in the United States. So far, nineteen elementary school students and two teachers have died as a result of this latest massacre. There have been some 212 mass shootings in the United States so far this year in some 144 days. It is estimated that some 45,000 people will be killed this year with guns in this country. This is a rate of death by guns that is quantum leaps higher than any other industrialized country. The situation is crazy and it is crazy to think that the Second Amendment of the United States Constitution requires us to put up with this.
Whatever your approach to construing the Constitution, and especially if you are a proponent of strictly construing it and/or of finding the original intention of the Founders, as the right-wing majority of the Supreme Court claim to be, it is literally impossible for you to find in good faith that the Second Amendment was intended or can be extended to cover the gun laws, or rather lack of gun laws, in this country.
In construing the Constitution, it is one thing, for example, to extend the free speech protections of the First Amendment to radios, televisions and internet communications when the Founders had only newspapers and the town square in which to say their piece. Modern methods of communication are just more of the same sort of thing as newspapers and public spaces. But the Second Amendment’s guarantee of the right to carry a gun as part of a government militia is a whole different thing than the right to keep a gun in your own home and carry it around in public. Let alone own and carry an assault weapon.
As I try to explain in this essay, it was literally impossible for the Founders to have intended this sort of behavior, or for the Second Amendment to be extended to cover it, both because of the explicit language of the Amendment and because of the factual situation that pertained at the time the Amendment was written. And the Second Amendment was never construed to guarantee an individual’s right to own and carry a gun, or to overturn gun control regulations, until fairly recently in the twenty-first century.
Remember the oft dramatized battle of the Earps against the Clantons at the OK Corral in Tombstone, Arizona? The fight was precipitated by the refusal of the Clantons to check their guns at the city limits before entering Tombstone. Tombstone had strict gun control regulations, as did many towns during the eighteenth and nineteenth centuries, including such famous western cowboy towns as Dodge City, Abilene and Deadwood. Law enforcement officials were the only ones allowed to carry guns in town. And no one thought these regulations were somehow in violation of the Second Amendment. A right-wing majority of Justices on the Supreme Court – they cannot be considered conservatives as they are often called and like to call themselves – has undertaken in recent years a radical rejection of some two hundred years of Second Amendment practice in this country.
It has often been said that the Constitution should not be construed as a suicide pact. It is either mass murderous lunacy or murderous political cynicism to keep on as we have been doing in this country. In the vain hope that arguments in this essay might contribute to the discussion of gun controls, I am reposting it today.
BW 5/25/22
Construing the Constitution.
The Second Amendment to the United States Constitution cannot plausibly mean what a majority of Supreme Court justices has been saying it means in recent years. In the case of District of Columbia v. Heller (2008) and in subsequent cases, the Court’s right-wing majority has ruled that the Founders intended the Amendment as a guarantee of the right of individual citizens to defend themselves by keeping guns in their homes. This conclusion is not plausible, and any ten year old kid watching movies about the American Revolution could see its implausibility as I did when I was ten years old.
While the Court’s misinterpretation of the Second Amendment seems to be partly a result of the right-wing justices’ letting their partisan political opinions trump what should be their nonpartisan judicial wisdom, their misinterpretation can also be seen as a result of their failing to understand the Amendment as a product of historical options and choices.
The Constitution was drafted by a committee of gentlemen who attended the Constitutional Convention as representatives of diverse political views. Anyone who has been a member of a committee knows that in producing a statement of the committee’s views, members will almost invariably have to compromise. They will also generally have to articulate many of the committee’s conclusions in vague terms that can encapsulate a multitude of positions and that can, therefore, be interpreted in a variety of ways, some of them plausible, others not. And so it was with the Second Amendment and the Constitution as a whole.
It has long been a general principle of Constitutional construction that when a provision is clear and specific, such as the requirement that Presidents be at least thirty-five years old, the provision must be strictly construed and applied. And there has been little controversy and no change in the way this age requirement for Presidents has been applied. But when a provision is vague and merely directive such as, for example, the Interstate Commerce Clause, the provision is supposed to be interpreted in the general direction intended by the Founders but can be plausibly interpreted differently at different times depending on the interpreters’ points of view and the situation in the country. Consistent with this principle, the Interstate Commerce Clause has been interpreted by the Supreme Court in different ways over the years based on the changing composition of the Court and changing circumstances in the country.
Construing the Second Amendment.
The Second Amendment is specific in part and vague in part. It states that “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.” According to the general rules of construction, the specific part should be strictly applied by the Supreme Court and the vague part should be interpreted in the direction that the Founders seem to have intended. In its recent rulings, the right-wing majority on the Court has done neither.
The first part of the Second Amendment is clear and specific. It states that the purpose of the Amendment is to ensure that each of the states in the United States should be able to maintain a militia for its protection. This means that no matter how the rest of the Amendment is interpreted, the interpretation must relate to the purpose of maintaining a state militia. Self defense in eighteenth century America was considered as primarily a communal and collective effort rather than an individual responsibility. The Second Amendment reflects this fact. The Second Amendment also reflects the specific concern of southern slave-owners that they be able to maintain vigilante militias to keep their slaves in check. In recent decisions of the Supreme Court, the right-wing justices, including the self-styled strict constructionists among them, have completely disregarded both the specific language of this first part of the Amendment and the circumstances in which the Amendment was enacted.
The second part of the Amendment is vague and general. Its interpretation depends on how one defines “the people,” what one means by keeping and bearing arms, and what one considers to be an infringement on keeping and bearing arms. This part of the Amendment is open to various plausible interpretations but not to the interpretation that it has been given by the right-wing majority on the Supreme Court. That is, even if you go along with the majority in disregarding the clear intent of the first part of the Amendment with respect to militias, you still cannot plausibly arrive at the conclusion that the Amendment guarantees the right of individuals to keep guns in their homes.
Would you want a musket in your house?
This is where it takes merely the mental acuity of a ten year old watching movies about the Revolution — you can glean it from even a glitzy Hollywood production — or an approach that looks at history as people making choices to see the light. The key facts are that the most widely available gun at the time of the writing of the Second Amendment was a musket and that almost no one would have wanted to keep a musket or other gun for personal protection in their home.
A musket had a smoothbore barrel and was muzzle-loaded. You loaded a musket by stuffing some paper and pouring some gunpowder down the muzzle, then you shoved a round bullet down the barrel. The concoction was ignited and the bullet fired from the gun.
Muskets were very inaccurate. Since the barrel was smooth and the bullet was round, the bullet wobbled as it traveled down the muzzle and continued to wobble as it went into the air. As a result, you could not aim a musket at a target more than a few feet away with any expectation of hitting it. That is why standard military practice at this time was to stand soldiers in a line and have them all fire at the same time. No one of them would hit what he was aiming at, but the group would unleash what was in effect a wall of lead that would eventually hit something.
Loading a musket was time-consuming. The same was true of rifle-barreled long guns, or rifles, that were more accurate but much more expensive than muskets and not widely available. It could take an ordinary person some two to three minutes to load a musket or rifle. Thus these guns could not be repeatedly fired with any rapidity. That is why standard military practice at this time was to have at least two rows of soldiers with one row firing while the other row was reloading. Even so, it was standard practice to make a bayonet charge on your enemies after they had fired their guns and before they could reload. The expectation was that the bayonet charge would be the decisive maneuver, not the gunfire.
These two facts about muskets, by themselves, would have made it unlikely that anyone would want to keep one in their home for defensive purposes. A weapon that could not be accurately aimed and that took several minutes to reload was not a very reliable defensive weapon against an intruder. A pike or ax would be much more reliable and, in fact, these were seemingly the defensive weapons of choice of most colonists.
A third fact about muskets and other guns made this choice almost inevitable. Keeping a gun at home meant keeping a bag of gunpowder in your home. The gunpowder in use at that time was highly volatile and liable to explode in the vicinity of the slightest spark or change in barometric pressure. Keeping a bag of gunpowder in a house that was heated by wood burning fireplaces or stoves was a very dangerous undertaking and not one that many people would choose.
The final fact about muskets and other guns is that they were almost always stored in some sort of armory that was kept for the local militia rather than kept in people’s homes. That is why the British were on their way to Lexington and Concord when Paul Revere made his famous ride. The British wanted to confiscate the arms that were stored for the militia in the armories of those rebel towns. The Americans repelled the British and defended the right to have an armed militia. And that, in turn, is what the Second Amendment was all about: securing the viability of the militia under the new Constitution.
In sum, given the state of arms at the time the Second Amendment was written and the fact that very few Americans had or wanted to have guns in their homes, it is not plausible that the Founders could have intended the Amendment to guarantee the right of individual citizens to keep guns for self-defense in their homes. As a ten year old kid watching old movies, I could see that it would be impracticable to have a musket and undesirable to have a bag of gunpowder in one’s house. Why couldn’t a majority of the Supreme Court justices see that as well?
Bibliographical note: There are no reliable statistics on gun ownership during the eighteenth and early nineteenth centuries in America. All we have is anecdotal evidence. An attempt was made by Michael Bellesiles to produce statistical evidence in his book Arming America: The Origins of a National Gun Culture (2000) demonstrating that few Americans owned guns during that time. Bellesiles, however, committed gross scholarly errors in some of the assumptions he made about his data and in some of the extrapolations he made from his data. He was accused of inventing data and of committing academic fraud. Under sustained attack by the National Rifle Association and other so-called gun rights advocates, who claim that gun ownership was a founding principle of American society, the book has been widely discredited and generally disregarded. Bellesiles’ dubious statistics are, however, only a small part of the evidence he presented in support of his contention that few Americans owned guns during this period. The book also contains a large amount of undisputed anecdotal evidence that is worthwhile reading and, I believe, ultimately convincing.
historyaschoice 