The Secret History of the Second Amendment I.

In 17th Century England, exponents of “natural rights” held that humans had a “right to life,” so they had a “right to self-defense,” so they had a “right to keep and bear arms.” The English “Bill of Rights” (1689) forced on William and Mary[1] as part of the price for them gaining the throne “restored” this long-standing right after King James II had tried to take it.

No one in colonial British America doubted that the “right to keep and bear arms” was an individual right possessed by all free white men. They recognized that this right could lead to trouble on occasion,[2] but they never questioned it. The American Revolution extended this claim to a right of armed resistance against tyranny, but did not replace it. The prefatory clause in the Second Amendment (1791) about “A well-regulated militia” reflected this blurring of two issues. Post-war rebellions on the frontier[3] led to calls for the creation of a strong army, rather than to a questioning of the individual right to keep and bear arms.

Nineteenth Century America could be a violent place, so efforts to limit weapons arose. The efforts sparked the basic division between those who saw the right to keep and bear arms as an “individual” right and those who saw it as a “collective” right operated through the state militia. Only in the aftermath of the Civil War did this debate reach the Supreme Court of the United States. In 1875 the Supreme Court interpreted the Second Amendment to mean that the federal government could not regulate individual possession of arms, but that state governments were free to do so. The case in question arose out of efforts to disarm freedmen to make them vulnerable to attack by the Ku Klux Klan. The Court upheld this strategy.[4] In 1886, the Supreme Court re-affirmed that the federal government could not regulate arms, but that the states could regulate arms. The case in question arose out of efforts by companies to disarm working men to make them vulnerable to attack by gun-thugs hired by the employers to prevent unionization. The Supreme Court upheld this strategy.[5] There matters rested for 50 years.

In the late 19th and early 20th Centuries, various local efforts at gun control proliferated.[6] None of these challenged the individual right, but they sought—with uneven effect—to regulate its use. Then came the “Noble Experiment”: Prohibition.[7] Prohibition stimulated violence among black-market liquor dealers.[8] In 1934, in a reaction against the violence, Congress passed the National Firearms Act (NFA). It required the registration and control of private ownership of fully automatic machine guns and sawn-off shotguns. Congress had considered banning hand-guns as well, but decided that was a loser’s game: too many men owned hand-guns for perfectly legitimate purposes.[9] In 1939, the Supreme Court upheld this law.[10] There matters rested for 30 years.

[1] The king and queen, not the highly-regarded university in Virginia attended—ahem–by my god-son.

[2] For example, writs of eviction of frontier squatters often were not served by sheriffs “by reason of a gun.”

[3] Shay’s Rebellion, 1786-1787; the Whiskey Rebellion, 1791.

[4] https://en.wikipedia.org/wiki/United_States_v._Cruikshank

[5] https://en.wikipedia.org/wiki/Presser_v._Illinois

[6] See: https://www.youtube.com/watch?v=4NzK6NzctuE See: https://en.wikipedia.org/wiki/Sullivan_Act

[7] The “war on alcohol” preceded the “war on abortion” before Roe v. Wade, which preceded the “war on drugs.”

[8] See: https://www.youtube.com/watch?v=seewFj-zybQ; see: https://en.wikipedia.org/wiki/Saint_Valentine’s_Day_Massacre

[9] See: https://en.wikipedia.org/wiki/National_Firearms_Act

[10] See: https://en.wikipedia.org/wiki/United_States_v._Miller In 1968 the Supreme Court found that the law would require self-incrimination if a convicted felon failed to register a weapon he was not allowed to own. https://en.wikipedia.org/wiki/National_Firearms_Act Sigh. It was the Sixties. See: “Dirty Harry” (dir. Don Siegel, 1971), https://www.youtube.com/watch?v=kh62SjGdI0s

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