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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.

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.

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Limiting the Sum of Lincoln’s “Some:” Democracy, Mobocracy and Majority Rule.

Limiting the Sum of Lincoln’s “Some:” Democracy, Mobocracy and Majority Rule.

Burton Weltman

Abraham Lincoln and Democracy as a Fools’ Paradise? 

Abraham Lincoln famously said that you can fool all of the people some of the time and some of the people all of the time, but you cannot fool all of the people all of the time.  This is, I think, a great formulation of political wisdom, and the conclusion that you can’t fool everybody all of the time has been taken as an expression of hope for the world.  Demagogues and shysters may have their way for a while, Lincoln conceded, but we cannot all be fooled by them all of the time.  So, his is a statement of hope for democracy, but it is also a statement of concern.  Lincoln’s underlying concern lies in the word “some” that appears in the first two clauses of his statement, that you can fool everyone some of the time and you can fool some of the people all of the time.  The word “some” in these clauses begs the question as to how long can you fool all of the people, and what proportion of the population can be perpetually fooled?  Most important, Lincoln leaves us with the all-important question of how can we minimize the sum of these “somes?”  How can we minimize number of people who are fooled and the duration of their being fooled?  That was one of Lincoln’s main concerns for American democracy, and remains a concern for us today.

To be foolish is to think that you are expert in something that you know little about, and to think that you are wise in ways that you lack good sense.  It is a failing to which most of us all-too-easily fall prey.  Most people are knowledgeable about things with which they are regularly involved, their jobs for example.  People are generally willing and able to think about such things in complex terms and to reach nuanced conclusions.  At the same time, most people know very little about things with which they are not regularly involved, for example politics and government.  But that does not stop them from thinking that they need to know all about those things, or that they do.  What most people do in that situation is to insist that things about which they are ignorant are really quite simple, and to latch onto some simplistic slogans that supposedly embody the truth about those things. With respect to government and politics, for example, they may latch onto Fox News talking points about government and politics.

The tendency of people to think simplistically about politics and government is a problem in a democracy such as ours.  As citizens of a democracy, we are all supposed to participate in choosing our government, deciding what actions it should take, and monitoring its performance.  Few people, however, actually know anything about how government works.  They don’t study it, and they don’t have government jobs that might familiarize them with the workings of government.  Their personal contacts with government are minimal and usually involve unpleasant matters, such as paying taxes and traffic tickets and complaining when something goes wrong.  At the same time, most people take for granted the services that government routinely and regularly provides, such as clean water, paved roads, street lights, etc.  They assume those things are simple, and many don’t even realize they are a product of government.  It is this ignorance of how government works, coupled with the arrogance of thinking that government is simple, that leaves people open to being fooled by demagogues and shysters who preach bumper sticker slogans and sell simplistic half-truths.

How can democracy function with a public that can be fooled in total some of the time and in part all of the time?  That is the gist of Lincoln’s concern.

Edmund Burke and the Conservatives’ Case against Democracy. 

Edmund Burke, who is generally considered the father of modern conservatism, believed that the general public was not capable of playing a constructive role in government.  That is why he favored an aristocratic and elitist form of government over democracy.  Cultivate an elite class of leaders, Burke claimed, give them the reins of government, and all will be well.  Give power to the people, and you will end up with what we might today call a mobocracy — violent and oppressive rule by the ignorant masses.  Burke warned that the ignorance and impatience of the masses would leave them open to demagoguery — the simplistic sloganeering of malicious leaders who appeal to peoples’ fears and hatreds.  Subservience to demagogues would lead the masses to violence and society to ruin.  In this context, Burke railed against the mobocracy that he claimed was destroying France during the French Revolution of the late eighteenth century.

Burke was particularly opposed to majority rule.  Majority rule, he warned, can quickly devolve into mobocracy in which racial, religious, ethnic and political majorities oppress minorities, impose the majority’s ideas on everyone else, and give no one else a chance for power.  This is a significant issue for us today.  We have seen in recent years many countries around the world where dictatorships have been succeeded by mobocracies which, in turn, may soon be succeeded by new dictatorships.  This was a vicious cycle of dictatorship and mobocracy that worried many of the ancient Greeks, and that worried Burke about democracy.

Burke was also concerned about destructive social changes that he thought would inevitably result from democracy.  The masses, he warned, would be misled by ideologues and demagogues into supporting first one and then another futile radical reform.  This is also a significant issue for us today.  Burke claimed that the ability of humans to predict and control the consequences of their actions was limited, and that the potential for unintended negative consequences outweighed the potential for positive consequences in any radical reform.  Burke was, therefore, unwilling to support radical reforms that proposed to make things better because he believed the resulting unintended negative consequences were likely to make things worse.  He was not, however, opposed to all social change, and he was willing to support modest social reforms that were intended to ameliorate hardship and keep a bad situation from getting worse.

Burke was a pragmatic conservative.  He was not a right-wing ideologist of the sort that today parades as conservative, but is actually radically reactionary and regressive.  Self-styled Tea Party conservatives, religious conservatives, and social conservatives of today want to radically change society back to ways that they believe were better in days long past.  They are not conservatives but radical right-wingers, ideologues and demagogues of the sort Burke feared would dominate in a democracy.  Burke would likely cite their popularity as proof of his arguments against democracy.  Burke and conservatives since his time have generally claimed that liberty and equality, and freedom and democracy, are distinct and incompatible.  Liberty, freedom, minority rights and social stability are safe, they say, only in the hands of an entrenched and enlightened elite.  In a democracy, demagogues of the left and right will invariably take advantage of the masses to destroy liberty, and to wreak havoc on society.

The Founders’ Democratic Faith.

The Founders of this country agreed with Burke about the dangers of majority rule, but rejected his vision of democracy.  Democracy as it was envisioned by them, and embodied in the Constitution, is more properly conceived of as majority rule with minority rights, with the most important of these rights being the right of the minority to someday become the majority.  Guaranteeing the right of minorities to freely function and someday possibly become the majority was a key concern of the Founders, and is the underlying rationale for the Bill of Rights.  While the Founders believed in government of the best and brightest, they also believed that ordinary people could and would recognize and choose the best and brightest as their leaders.  And they believed that the constitutional system they had established provided an institutional framework for successfully combining liberty and democracy.

At the same time, the Founders did not think that the history of democracy in the United States would be an easy progression.  They anticipated a perpetual struggle over the terms and practices of democracy, and they provided in their Constitution for the ways and means of amendment and interpretation that would embody that struggle in what they hoped would be peaceful conflict.  Things did not always work the way the Founders hoped, as exemplified by the Civil War, the various Red Scares and other episodes of intolerance and oppression of minorities in our history.  But as the Founders expected, there has been an ebb and flow of liberty and democracy in the history of this country.

Conventional History, History as Choice and the Case for and against Democracy.

You would not, however, get from conventional histories of the United States the impression that democracy has been a highly contested term and precarious practice.  To the contrary, while conventional histories generally admit that the country has moved from being less democratic to being more democratic, they generally describe American history as an inevitable march toward democracy.  And in so doing, most histories simplistically define democracy as majority rule, and describe the rise of American democracy simplistically in terms of the rise of majority rule.  This is a one-dimensional definition and a one-dimensional narrative that not only makes for bad history, it is undemocratic history.

The problem is that conventional history is essentially winners’ history.  It focuses almost solely on what happened, and leaves out what could have happened.  It provides you with little idea of what the various options were in any given situation, why a given option was chosen over the others, and what might have happened if a different option had been chosen.  The losers are lost in this sort of history.  The minorities who did not prevail are dismissed.  This sort of history does not portray the struggle over democracy, or the struggles within a democratic system.  It provides people with little education in how politics and government actually work, and how they might go about making choices as democratic citizens.  And it plays into the sort of one-dimensional ideological narratives promoted by right-wing and left-wing demagogues.

History as choice resurrects the options, debates, choices, consequences (both intended and unintended), and alternative possibilities of the past, and portrays a multi-dimensional past that looks and feels like the multi-dimensional present.  In so doing, it recognizes the importance of the losers in history, the minorities who may eventually became the majority, sometimes for the better — as in the case of the civil rights advocates who lost in the 1860’s-1870’s, but came back to win during the 1960’s-1970’s — and sometimes for the worse – as with laissez-faire economics which was completely discredited and discarded during the early twentieth century, but has regained credibility and influence during the early twenty-first century.  Approaching history in this way helps you to understand how government and politics work, and helps prepare you for the choices that you need to make as a democratic citizen today.

History as Choice and Limiting the Sum of Lincoln’s “Some.” 

But history as choice is not simple or simplistic.  And most people do not have the time or energy to engage in complex historical studies.  Which brings us back to Burke’s challenge to democracy.   How can we expect ordinary people to be informed and intelligent citizens?  How can we minimize the sum of perpetual fools that worried Lincoln?  What is to be done?  I can suggest at least three things:

First, I think that those of us who are students and teachers of history have an obligation to approach history in ways that I characterize as approaching history as choice.  This method is by no means unique to me.  Even the phrase “history as choice” is used by many others, and is the way that most students and teachers approach history when they are doing what they consider their best work.  Studying history can and should be practice for living in a democratic society.

Second, I think that we all have to recognize and acknowledge that we cannot know everything about all the things we want and need to know about.  We have to rely for most things in this world on the experience and expertise of others.  That does not mean we have to depend on a permanent class of elite leaders as Burke would have us.  The democratic alternative to elite leadership is revolving leadership in which those in the know on a given issue can and will be allowed to take the lead on that issue.  But those who lead on one issue may not necessarily lead on the next issue.  On the next issue, different leaders may emerge.

In this context, possibly the most important question that we all have to answer in deciding most issues is “Whom do we trust?”  And a key to answering that question is to look for people to trust who neither claim that things are simple nor provide simplistic answers.  You would not rely on a doctor who merely mouthed the advertising slogans for medicines that you see on TV.  So why would we want to rely on politicians who do likewise?  We should look, instead, for people who approach problems pragmatically rather than dogmatically, deal with them in depth, and provide more than bumper sticker solutions.  Studying history as choice can help us develop the skills needed to identify those who can be trusted to lead on important issues.

Third, while Franklin Roosevelt may have exaggerated when he claimed that “We have nothing to fear but fear itself,” the politics of fear and hate is the province of demagogues who appeal to our lowest emotions in order to fool and manipulate us.  We must, instead, look for ideas, policies and leaders that emphasize the politics of hope, inclusion and cooperation.  Studying history as choice can help us to distinguish the politics of hope from the politics of fear.  We must understand how and why sometimes bad options are chosen with good options ignored, and vice versa.  We must understand how and why sometimes bad people flourish, but other times good people do.  We must explore the ways in which sometimes losers become winners, and winners become losers.  This is the ebb and flow of our daily lives and of history, and these studies can help us distinguish between what we should fear and what we can hope and trust.  Yes, there are things to fear, but fear is the worst of these things, and the thing we should fear the most.  That we can overcome our fears and our ignorance is the hope that Lincoln left us with, and the best way to meet Burke’s challenge to democracy.

What do you think?

Postscript:  For further discussion of history as choice and democracy see my book Was the American Revolution a Mistake? Reaching Students and Reinforcing Patriotism through Teaching History as Choice (AuthorHouse, 2013).