FEBRUARY 10, 2013
Image: “Lovers Targets 2 of 8”
Credit: Travis Diehl
BARACK OBAMA’S COMPREHENSIVE PROPOSALS for stricter gun laws, offered to the country on January 16, reignite an old debate. Much of the intractability surrounding this vexing and contentious issue arises from the deeply entrenched narratives that shape much of that debate. In point of fact, much of what people believe about the history and law of guns in America — that gun possession was common from our earliest days, guns tamed the Wild West, gun laws only arose in modern America, Americans have always had a constitutionally-protected personal right to gun ownership, the Second Amendment protects the right of citizens to rise up against their own government if it becomes oppressive — are all demonstrably false. America certainly has an honorable gun tradition and gun culture spanning our history, and the values and beliefs of gun owners should play a vital role in the shaping of gun policy. But much of our gun culture has also been badly distorted by Hollywood and gun zealots. If we take the past as any cue to the present, then we should take comfort at least in the knowledge that our past gun history is far more compatible with present dilemmas, and policies, than most realize.
Gun Law History and Culture
Gun possession in America extends back to its earliest settlements in the 17th century, beginning with Jamestown and Plymouth, where guns were used for hunting and protection. Yet in the colonial and early federal period, guns were relatively rare, and seldom associated with interpersonal violence. Most significant gun-related violence occurred between Native Americans and European settlers, and as a primary tool of war. In early conflicts, including the Revolutionary War, limited gun availability among the general population proved to be a severe problem, as American military leaders, including General George Washington, regularly complained that service-eligible males lacked not only working firearms, but the basic knowledge of their use and maintenance. The relative rarity of guns in early America is attributable to several facts. Guns were expensive, as they were made mostly by hand by blacksmiths (the first gun factory in America did not begin operation until 1790), who might perhaps turn out a few dozen weapons in a year; they were made of iron, meaning that they rusted quickly without regular maintenance; they required parts and materials, like gunpowder, that were often difficult to obtain and deteriorated rapidly; they were heavy, cumbersome, and dangerous to operate, requiring the operator to have considerable skill. A well-maintained firearm, used periodically, could be expected to last roughly five years. And while some colonials hunted regularly for food and pelts, most were subsistence farmers who relied on agricultural produce and domesticated livestock for food. Guns were also imported from Europe at substantial expense, but as the Revolution neared, import became more difficult.
Gun ownership became widespread in America around the time of the Civil War, when millions of men became acquainted with the use of firearms during military service, and technological improvements in gun manufacturing and standardization of ammunition made guns safer and easier to operate, more reliable, more prolific, and less expensive. As early as the 1850s, gun manufacturer Samuel Colt aggressively marketed revolvers to the public, linking his guns through extensive advertising campaigns with romanticized and idealized visions of the American West. Colt’s innovations in the machine production of revolvers allowed a high quality product to be manufactured in large numbers. By the end of the 19th century, the glut of handguns in America spawned by Colt and his competitors began to prompt calls for government action to stem the rising tide of gun violence found mostly in eastern cities rather than in the American western frontier.
Early Gun Laws
Gun laws are as old as gun possession, and the country itself. From the colonial era through the early 19th century, firearms possession was regulated in three primary ways.
One type of regulation required eligible males to own guns as part of their militia service obligation, as militias provided the primary means for collective local defense. Longstanding concerns about the lack of firearms among the general population continued to be a primary concern to American leaders up through and after the American Revolution. In 1792, Congress passed the Uniform Militia Act, which required each militia-eligible man to own a musket or firelock, a bayonet and belt, spare flints, a pouch containing at least 24 cartridges along with the necessary quantity of powder and ball. Within the next two years, all 15 states passed similar measures, yet they lacked enforcement power, and these laws were widely ignored. In addition, states reserved the right to take or “impress” guns, even if privately owned, if they were needed for defense, and to direct that guns be kept in a central location for rapid accessibility.
A second type of early gun control law barred gun ownership to various groups, including slaves, indentured servants, Native Americans, Catholics or other non-Protestants, non-property-owning whites, those who violated hunting laws, and those who refused to swear oaths of loyalty to the government. Laws barring distribution of guns to Native Americans were among the first such measures. As early as the 1600s, persons discovered selling guns to Indians could be subject to death. Pennsylvania enacted laws to take guns away from citizens deemed disloyal when it passed the Test Act in 1777, which specified that those who refused to swear an oath of allegiance to the government would be disarmed. According to historian Saul Cornell, this law disarmed up to 40 percent of the state’s adult white male population. Continuing governmental concern with the nation’s ability to organize reliable military forces through its militias prompted it to conduct periodic gun censuses both before and after adoption of the Constitution of 1787. In 1803, for example, Secretary of War Henry Dearborn coordinated the most extensive and thorough such gun census ever conducted up until that time, concluding that about 45 percent of all militiamen (men between the ages of 18 and 45) had arms (including nonfunctioning weapons), or about a quarter of the white male adult population. A similar census seven years later produced similar results.
A third type of gun law incorporated measures regulating or restricting gun use very much in the way guns are regulated today. For example, North Carolina enacted a law in 1778 criminalizing hunting in the woods at night by firelight, a practice barred in contemporary America because game like deer freeze when hit by artificial light at night. Anyone who was caught was impressed into military service for three years. Tennessee enacted a law in 1821 that prohibited the carrying of certain named dangerous weapons, including pistols. (Similar carry restrictions were enacted in most states.) Those convicted were required to pay a fine. In 1837, Georgia enacted a law making it a crime to sell or possess certain named dangerous weapons, including pistols. Those convicted paid a heavy fine. Several counties in Virginia passed ordinances making it a crime to hunt wild fowl with a gun while doing so on a skiff (a shallow boat). The penalty for violation was that the defendant’s gun was taken from him and sold, with half of the proceeds of the sale to be given to the government and the other half to be given to the person who reported the crime.
The Mythology of the Wild West
In the 19th century, westward expansion was accompanied by the enactment of various gun regulations. These regulations undercut the wildly exaggerated stories about the use of guns in the American West. While the West did witness gun violence, its extent and pervasiveness has been greatly overstated, a process that began when contemporary newspaper reporters and authors of pulp fiction dramatized, glorified, and invented stories of numerous wild shoot-outs.
The settling and taming of the West was primarily attributable to the advance of homesteaders, ranchers, miners, tradesmen, businessmen, and others who populated the region, worked the land, drove away Native Americans, and established towns and cities. Gunslinging cowboys carrying six-shooters and rifles played a relatively minor role in this process. As many historians of the West have noted, far more people died in shoot-outs in movies than ever died in the real-life West.
For example, during the height of lawlessness in the legendary cattle town of Dodge City from 1876 to 1885, a total of only 15 persons died a violent death — an average of 1.5 deaths per year. In Deadwood, South Dakota, in its most violent year, four people were killed. In the most violent year in Tombstone, Arizona, home of the celebrated gunfight at OK Corral, five people were killed. From 1870 to 1885, the combined total number of killings reported in the cowboy towns of Abilene, Caldwell, Dodge City, Ellsworth, and Wichita was 45, and only six of those killings were from six-shooter handguns; 16 killings were by police.
Even in the most violence-prone western cattle towns, vigilantism and lawlessness were only briefly tolerated. Laws against carrying guns within city or town limits were immediately enacted and strictly enforced by having those with guns check them at some designated location, for which they would usually receive a metal token for identification and reclaiming purposes. As a consequence, there were few homicides even during the heyday of gun violence in the 1870s, and most that occurred resulted from drunkenness and disputes over gambling. Ironically, the rise in citizen gun ownership after the Civil War occurred mostly in eastern cities, not in the Wild West.
The gun disarmament that was routinely practiced in newly formed western towns was well understood to be a sign of civilization and an improvement in public safety, especially as local businesspeople realized that fear of violence and disorder drove away settlers and customers. Ironically, the typical Old West town had stricter gun laws than many 21st century American states (to date, four states have eliminated all restrictions for those wishing to carry concealed handguns in public).
Modern Gun Controls
Two types of events spurred the frequent calls for tougher gun laws in the 20th century: the spread and fear of gun-related crime, and the assassinations of political leaders and celebrities. Despite enduring popular support for tougher laws, new federal gun regulations have been infrequent and limited in scope.
The rise of gun-fueled gangsterism in the 1920s and early 1930s, and the election of Franklin D. Roosevelt as president in 1932 (who was himself subject to an unsuccessful assassination attempt in 1933 that resulted in the shooting death of Chicago Mayor Anton Cermak), boosted the prospects for national gun laws. The first significant national gun control measure was the National Firearms Act of 1934, which strictly regulated gangster-type weapons, including sawed-off shotguns and machine guns. The Federal Firearms Act of 1938 established a licensing system for gun dealers, manufacturers, and importers.
No new federal gun control laws reached the president’s desk until 1968, when a five-year push for tougher laws culminated in the enactment of the Gun Control Act. Momentum for new controls took shape in the aftermath of the assassination of President John F. Kennedy in 1963. His assassin, Lee Harvey Oswald, had purchased a rifle through interstate mail. By the mid-1960’s escalating crime rates and the spread of urban disorder raised new fears about spiraling gun violence. Such fears peaked in 1968, as urban rioting continued, and when, in that same year, civil rights leader Martin Luther King Jr. and Senator Robert F. Kennedy, were both assassinated. Those two murders provided the final impetus for passage of the Gun Control Act. The law banned interstate shipment of firearms and ammunition to private individuals; prohibited gun sales to minors; strengthened licensing and recordkeeping requirements for dealers and collectors; extended regulations to destructive devices including land mines, bombs, and hand grenades; increased penalties for gun crimes; and regulated importation of foreign-made firearms. Cut from the bill was a provision, backed by President Lyndon Johnson, to enact blanket gun registration and licensing.
The next major gun law enacted by Congress, the Firearms Owners Protection Act of 1986, rolled back many of the provisions of the 1968 law at a time when anticontrol forces, led by the National Rifle Association, exerted great influence over Congress and the presidency of Ronald Reagan. It allowed interstate sale of long guns (rifles and shotguns), reduced recordkeeping for dealers, limited government regulatory powers over dealers and gun shows (in particular, limiting inspections of gun dealers to one a year), and barred firearms registration, although it also barred all civilian possession of new automatic weapons.
Highly publicized incidents of mass shootings in the late 1980s and 1990s, combined with the election of control supporter Bill Clinton to the presidency, resulted in a new and successful effort to enact gun laws including the Brady Law in 1993, which required background checks on handgun purchasers to weed out felons and the mentally incompetent. From 1994 to the present, the National Instant Criminal Background Check System (NICS) has blocked nearly two million gun sales.
In 1994, Congress enacted a ban on 19 specified assault weapons, plus several dozen copycat models, which were distinguished from other semiautomatic weapons by virtue of their distinctive military features, including more compact design, short barrels, the ability to receive large ammunition clips, lighter weight, pistol grips or thumbhole stocks, flash suppressors, or telescoping stocks (traits that facilitate concealability and spray fire). The law also exempted from the ban 661 specifically named weapons. According to government studies, although assault weapons constituted only about 2–3 percent of all guns in America, they accounted for 6–8 percent of gun crimes. Studies of selected areas around the country found that the use of assault weapons in crimes declined during the ban. Yet they have also been weapons of choice for mass shooters, and for those who have killed police officers.
The election of George W. Bush to the presidency in 2000 marked the ascension of the most gun-friendly president in modern history. During his administration, access to federal gun purchase records, even by law enforcement officials, was sharply restricted. Bush’s Justice Department provided a new interpretation of the Second Amendment’s right to bear arms that greatly expanded its scope, in the process overturning existing government legal policy dating back more than 50 years. In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act, which barred civil suits against gun manufacturers and dealers.
In a rare moment of conciliation, gun rights and control groups combined forces to win enactment of a law in 2007 to improve recordkeeping for those judged mentally incompetent (and therefore ineligible) to own guns. While such individuals had long been barred from gun ownership, most states did not keep or properly report such information, a fact dramatized when a student with a history of mental problems legally bought two handguns in Virginia and used them to kill 33 people on the campus of Virginia Tech State University in April 2007. Even today, however, compliance problems dog the system: 30 states still report no noncriminal information to the national data system.
The Supreme Court Redefines the Second Amendment
Despite all the talk about Second Amendment rights that pervades the national gun debate, the legal definition and parameters of the “right to bear arms” as a right of individuals to own guns for their own purposes is of recent vintage. From the time of its writing in 1789 through the end of the 20th century, the Second Amendment was interpreted as protecting a right to bear arms only in connection with what the first half of the sentence proclaimed: “A well regulated militia, being necessary to the security of a free state …” That is, it protected civilian gun ownership only in connection with citizen service in a government-organized and regulated militia. This militia-based understanding was confirmed by the Supreme Court most notably in an 1886 case (Presser v. Illinois) and a 1939 case (US v. Miller), and in nearly 50 lower federal court cases handed down from the 1940s through the beginning of this century.
Responding in part to a rising tide of writing in support of an “individualist” view of the Second Amendment buttressed substantially by gun rights groups, and because of a more conservative court sympathetic to this viewpoint as embraced by the Bush Administration, the Supreme Court reversed course on the Second Amendment in 2008 in the case of DC v. Heller. In this case, the court majority set two firsts: for the first time in history, a federal court overturned a gun regulation as a violation of the Second Amendment; in addition, it adopted the individualist interpretation of the amendment, reversing course on its prior militia-based interpretation and establishing a right of civilians to possess handguns in the home for personal self-defense.
The Heller case arose as a challenge to the District of Columbia’s strict gun law, first enacted in 1976 (and drafted, ironically, with the assistance of the NRA), which in essence banned handguns. The law was challenged as a violation of the Second Amendment. The Supreme Court ruled 5–4 against the DC law, striking it down as inconsistent with the court majority’s individualist reading of the Second Amendment. Writing for the majority, Justice Antonin Scalia concluded that the amendment now protected a personal right of civilians to own handguns to protect themselves in their homes. This right is by no means unlimited, however. Scalia noted that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” In addition to lending support for longstanding gun regulations, the court also suggested that certain types of especially powerful weapons might also be subject to regulation, and that laws regarding the safe storage of firearms would also be allowable. As for the court’s past reading of the Second Amendment as militia-based, the majority decision rejected the idea that the first half of the Second Amendment referencing a “well regulated militia” explained the second half of the sentence (referencing the right to bear arms) — as if they took a red pen and crossed out the militia wording. Indeed, most of the text of this lengthy opinion dealt with the history of the right to bear arms. The decision did not overturn US v. Miller, but dealt with it instead by saying that Miller was only about “the type of weapon” at issue in the case. “Beyond that,” Scalia concluded, “the opinion [i.e., Miller] provided no explanation of the content” of the Second Amendment.
A dissenting opinion authored by Justice John Paul Stevens disputed Scalia’s historical analysis, arguing in a similarly lengthy historical analysis that the amendment was indeed a militia-based right, and that the Supreme Court had said so in Miller and Presser. Stevens wrote that the amendment “was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.”
The Supreme Court completed its establishment of this new right two years later in the case of McDonald v. Chicago where the high court, by the same 5–4 vote, applied or “incorporated” the Second Amendment to the states. The McDonald case arose from a Second Amendment-based challenge to Chicago’s strict law that essentially banned handguns, and any other gun not already registered with the city (Chicago’s law was very similar to the DC law struck down by Heller). The majority opinion, written by Justice Samuel Alito, did two primary things. First, it affirmed the qualified Heller individual right, saying that “the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’” Further, this ruling was not to cast doubt on “longstanding [gun] regulatory measures” such as those cited in Heller. Second, the majority opinion incorporated or applied the Second Amendment to the states, while cautioning that “incorporation does not imperil every law regulating firearms.” While the majority argued that this individual right to guns was a “fundamental” right “necessary to our system of ordered liberty,” Justice John Paul Stevens, in his dissent, argued that guns “destabilize ordered liberty.” He and the dissenters continued to argue that Heller was wrongly decided, and that incorporation itself was not warranted in this case.
The Heller and McDonald rulings established, as a matter of law, an individual rights interpretation of the Second Amendment. But while judges can change the law, they cannot change history, and the historical record largely contradicts the bases for these two recent rulings.
As legal historian Paul Finkelman noted about Heller, Scalia’s opinion “is at best confused” and presents “an historical argument that is limited and wrongheaded.” To cite but one example, Scalia supports his nonmilitary reading of the Second Amendment by saying that “there is no evidence whatsoever to support a military reading of ‘keep arms.’” He adds that “we find no evidence that it [i.e., the phrase ‘keep and bear arms’] bore a military meaning.” The historical consensus, however, is the reverse. Contrary to Scalia’s categorical assertion, not only is there evidence that the Second Amendment phrase had a military meaning, but most colonial and military historians say as much. For example, as the Pulitzer Prize-winning historian Garry Wills has written, “‘Bear arms’ refers to military service [. . .] ‘arms’ means military service in general.” The historical evidence of the military usage of bearing arms, Wills says, is “overwhelming.” Wills’s conclusion about the Second Amendment is clear: “History, philology, and logic furnish no solid basis for thinking the Second Amendment has anything to do with the private ownership of guns.”
As the conservative federal judge Richard A. Posner noted, “professional historians were on Stevens’s side” in Heller (Stevens defended the militia-based view). Scalia’s distortion of history, according to Posner, is an example of “law office history,” meaning that it is the product of lawyers “tendentiously dabbling in history, rather than by disinterested historians.” Posner archly concludes that Scalia’s decision “is evidence of the ability of well-staffed courts to produce snow jobs.” Other commentators, notably prominent conservatives, accused Scalia of unwarranted judicial activism (a criticism usually reserved for liberals) and distortion of history, arguing that an accurate “originalist” reading of the Second Amendment leads to the militia-based understanding of the amendment, not the individualist view.
“So what,” you might say. The high court has changed the law, and that is what matters. But accuracy always matters, especially when so much of (in this case) the gun debate centers on what went on before. Aside from the hypothetical prospect that the court might someday change its mind, Scalia and his colleagues are simply not entitled to invent their own history, especially since that invention was the basis for one of the most important cases in recent years. The court changed the law, but it cannot change history — and it should be corrected when it tries.
A “Right of Revolution?”
At least twice, Scalia’s opinion in Heller links the right to bear arms with citizen resistance to tyranny. Given the decision’s individualist view of the Second Amendment, it infers that citizens, armed and acting independent of the government (not as part of a government-organized and regulated militia), somehow may use force against tyranny — government tyranny. This so-called “right of revolution” was not expressly endorsed by Heller, but it has been an important component of how many supporters of the individualist view have interpreted the Second Amendment. That is, proponents of a right of revolution (also called “insurrectionism”) have argued that the amendment is meant to provide a right of citizens to threaten or use force against their own government to somehow keep the country’s rulers responsive to the citizens. This belief has reemerged with even greater force in the current debate over changing national gun policy.
Most citizens recognize the importance of using democratic institutions and values to voice their opinions by participating in elections, juries, expressions of public opinion, and participation in interest groups rather than by pointing guns (whether by threat or deed) at congressional leaders, the White House, or judges. Few Americans approve of those few groups in America that actively pursue something resembling a right of revolution—the Ku Klux Klan, Lee Harvey Oswald, the Branch Davidians, Los Angeles rioters, those responsible for bombing the federal office building in Oklahoma City in 1995, or elements of the modern so-called “Patriot movement.” As the legal scholar Roscoe Pound noted, a “legal right of the citizen to wage war on the government is something that cannot be admitted […] In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.”
Any so-called right of revolution is carried out against our government, which means against that government’s constitution as well — including the Bill of Rights and the Second Amendment. In short, one cannot carry out a right of revolution against the government and at the same time claim protections within it. This fact was well understood by the country’s founders, as for example in 1794 when the government, through its militias, suppressed the Whiskey Rebellion, an uprising in western Pennsylvania. As the historian Saul Cornell noted, in the 1790s there was “widespread agreement that the example of the American Revolution did not support the rebels’ actions” because Americans at the start of the Revolution “did not enjoy the benefits of representative government,” whereas those who fomented the Whiskey Rebellion “were represented under the Constitution.”
The Constitution itself makes this point forcefully, as Congress is given the powers “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions (emphasis added)” in Article I, Section 8; to suspend habeas corpus “in Cases of Rebellion or Invasion” in Section 9; and to protect individual states “against domestic Violence” if requested to do so by a state legislature or governor in Article IV, Section 4. Further, the Constitution defines treason in Article III, Section 3, this way: “Treason against the United States, shall consist only in levying War against them” (the United States was originally referred to in the plural). In other words, the Constitution specifically and explicitly gives the national government the power to suppress by force anything even vaguely resembling revolution. Such rebellion is by constitutional definition an act of treason against the United States. The militias are thus to be used to suppress, not cause, revolution or insurrection. These powers were further detailed and expanded in the Calling Forth Act of 1792, which gave the president broad powers to use state militias to enforce both state and federal laws in instances where the law is ignored or in cases of open insurrection. As for the formulation of the Second Amendment, there is no evidence — none — that those who authored, debated, and approved the amendment somehow vested within it anything resembling a right of revolution.
Still, the link between guns and freedom has become an evermore entrenched component of the individualist view of the Second Amendment. For example, the 2010 Republican nominee for the US Senate from Nevada, Sharron Angle, said during the campaign, “our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. […] [I]f this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies.” Angle lost her Senate race, but many embrace her assertion that the Second Amendment gives people the right to use violence against Congress if they disagree with its decisions. But let’s be clear: this fanciful and dangerous idea bears no sane relationship to the intentions or purposes of the Second Amendment or to the government they labored to construct. As the American gun debate proceeds, it surely must do so in the true spirit of our history and law.