By Chris Bentley
With the rash of mass shootings shaking our country’s peace and overall sense of security, very well defined lines in the sand have been drawn between gun proponents and their adversaries-those in favor of greater gun regulations. Gun proponents quoting the line from the Bill of Rights declaring that the right to bear arms “ . . . shall not be infringed,” and those in favor of greater gun oversight sighting all the regulations other Amendments have seen over the decades.
Rather than quoting Rush Limbaugh or obscure one liners from original documents as I’ve seen most social media posts seem to revert too, I thought I’d outline some of the history behind our current gun-loving American culture.
An urgent message went out that night to pubs and boarding houses throughout Lexington and Concord. The militiamen were able to mobilize very quickly being expected to gather supplies and other necessaries at a moment’s notice, giving them the nickname “minute men.” The ragtag group that assembled the next day that faced several hundred British regulars was hopelessly outnumbered. The first shot of the eventual war was later described as “The shot heard round the world,” by Ralph Waldo Emerson.
Back then in 1775, the American colonies had no standing army, so state militias were mobilized to defend when necessary. Militias were composed of largely white landowners who were actually required to come to the country’s defense and to come armed with their own personal weapon. There were programs to help militia members who couldn’t afford to buy a gun outright to purchase one on credit.
Militia members were gloried as being the quintessential American icons of the era. But as the Revolutionary War, as it was later called, dragged on, General Washington and most other leaders of the day lost much of their previous admiration for militias since they found them to be highly unreliable, ill-equipped and lacking in disciple.
After the Revolution ended and as a result of the Constitutional Convention, Congress later granted the formation of an American military making up our first standing army. Many early leaders were violently opposed to the idea of a standing army, understandably, since the war, which was against a standing British army, was still very fresh in the leaders’ minds. The early Congressmen were also extremely wary of a strong centralized government because they feared a tyrannical government usurping the rights of the people.
In fact, the ratification of the Constitution ended up owed largely to a guarantee that the first session of Congress draw up a Bill of Rights outlining certain rights to citizens as well as limits to the power of the centralized government. James Madison, in his first term as a Virginia Representative, proposed a series of Amendments to the newly minted Constitution drafted largely by himself. After passing both Houses and after having several revisions, the Bill of Rights was incorporated.
By and large the language of the Amendments are very clear. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 1st Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 10th Amendment. However, the 2nd Amendment is murky at best.
First, extensive documentation and commentary from original texts, manuscripts and journals help us interpret the original intent of all other Amendments: not so with the 2nd Amendment. Among the few references we can look to for explanation and interpretation is a 17th century British law indicating that citizens have the right to “ . . .have Arms for their Defence suitable to their Conditions and as allowed by Law” (1688 c.2 1 Will. and Mar. Sess. 2″. The National Archives [UK]). This law was enacted largely because of the King’s practice of arming one religious group and mobilizing militias among them to attack another religious group who was legally not allowed to bear arms. After centuries of the 2nd Amendment’s existence, overwhelmingly, this right has been interpreted to refer to bearing arms for militia service or other military needs and not relating to individual right.
Second, the language itself is very confusing even for the most trained legal experts. “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.” Does this mean that individuals have the right to bear arms or only as a part of a well regulated militia? This is one of the greatest points of contention. If the amendment is interpreted to relate only to militias then it has little modern application since militias were abolished as they were previously known and later became our present-day National Guard and reservist units. On the other hand, if we interpret the Amendment to relate to individuals’ right to own firearms, as most modern-day advocates for gun rights do, then the “shall not be infringed,” mandate stands as pretty powerful ammunition.
Pun absolutely intended.
Bottom line, interpreting the amendment is far from simple and there is very good reason for advocates and antagonists alike to point to the Amendment language as fuel to prove their points of view. Thankfully, we don’t have to look to the original amendment as our sole source. There have been a number of Bills and Supreme Court rulings that can shed light on how government officials, past and modern, have interpreted the 2nd Amendment. However, the individual right to bear arms wasn’t addressed in a specific way until 2008 with the District of Columbia v. Heller ruling of the Supreme Court. The Court held that individuals have the right to bear arms separate from serving on a militia. Up until then, however, nearly all other rulings and laws related to the right to bear arms to defend the States as members of militias.
This might seem to put an end to the debate; however, the composition of the Supreme Court for the past several decades could make the 2008 ruling inevitable but perhaps not indicative of the majority thinking of its day. The Court of 2008 under Chief Justice Roberts was, arguably, the most Conservative period of the Court on record. With little to no other precedent for interpreting the 2nd Amendment like it was in the 2008 Heller ruling, it wouldn’t take much, with a bit of an infusion of liberal leaning, to overturn the previous ruling and set different perimeters on gun control.
All of this is meant to make clear the fact that gun rights as we know them today are very much in their infancy. Gun advocates like to point to the Bill of Rights as if to intimate that the right for individuals to bear arms for the purposes currently used like recreation and defense in the home are long held American values built into the very fabric of the formation of our Nation. Nothing, historical, legal, or otherwise, points to this. If the Constitutionalist argument of original intent is unclear or even unfounded, we have to take a more pragmatic approach based on modern realities.
And modern realities are pretty bleak. Though no precise estimates exist fort the total number of firearms in the United States, the closest guess places the number roughly at 300 million—almost enough firearms for their to be one for every citizen in the Nation. In reality only about a 3rd of the American populace owns guns. According to a BBC study, in 2012 there were 2.9 gun related deaths (not including suicide) to every 100,000 citizens, which placed the number well over 40 times the number of gun related deaths of that of the UK which sat at .1.
Mass shootings tend to draw the public eye much more than other gun related deaths. In 2015 there were 372 mass shootings killing a total of 475 according to Mass Shooting Tracker. But the total number of deaths due to firearms is much starker. 13,286 people were killed by firearms in 2015 alone. This number means that 60% of our Nation’s homicides are committed using firearms according to the Gun Violence Archive. The number of gun deaths between 1968-2011 exceeds all lives lost in every war ever fought by Americans: some 1.4 million gun deaths occurred compared to 1.2 million from the Revolutionary War to current conflicts in Iraq and Afghanistan according to PolitiFact.
The current debate on gun rights vs. gun control is certainly not new, but the history of guns in America includes some unlikely characters. During the Civil Rights movement, after his home had been bombed, Martin Luther King, Jr. applied to purchase a gun for self-defense. His application was denied but he did have armed guards at his home from 1956 on.
Later in California, the Black Panthers used gun rights to carry arms and to stop illegal arrests in clashes with police. It was the Republicans in California who pushed for gun control. The Mulford Act which called for restricting individual’s right to carry loaded guns within city limits anywhere in California, was pushed for by conservative state representatives as a way of counteracting the pushes from the Panthers. Ronald Reagan, then Governor of California, in 1967 was quoted as saying, in the Atlantic, “no reason why on the street today a citizen should be carrying loaded weapons.” He called guns a “ridiculous way to solve problems that have to be solved among people of good will.” In a later press conference, Reagan said he didn’t “know of any sportsman who leaves his home with a gun to go out into the field to hunt or for target shooting who carries that gun loaded.” The Mulford Act, he said, “would work no hardship on the honest citizen.”
This statement from one of the most revered Republicans from the modern era is in quite stark contrast to modern thinking. It is significant to note that the NRA, which has existed as an organization for longer than 140 years, didn’t endorse a presidential candidate until 1980 when it ironically endorsed Ronald Reagan who had established some of the strictest gun control laws in the country but who had changed his view on gun control. Nearly all lobbying for gun rights that we know the NRA for today has occurred since 1976. The NRA before that year was much more focused on recreational gun use and environmental efforts.
Overall, gun control measures of the 50’s through the 70’s were enacted largely for racist purposes meant to keep African Americans from owning guns. And the gun rights movement that the Supreme Court ruling in 2008 that can be seen as the crowning jewel of the NRA’s efforts, has had a brief but very effective history.
Gun advocates and gun control proponents are both watching with great anticipation how the vacant seat in the Supreme Court will be filled. If the Court swings to the left, there will almost certainly be cases brought for their interpretation, which may change the current environment for gun owners Nationwide in very dramatic ways. With the recent mass shooting in Orlando still fresh in people’s memories and still flashing on news stations, most Americans would have to admit that the status quo is not an acceptable option. Yet, whether the “If everybody had guns criminals would be stopped,” or the “If there were fewer guns there would be fewer gun related deaths” argument wins the day is yet to be seen.