For each of the past four weeks, I've been talking about guns, about some aspect of gun control. I'm going to do it again this week and probably for two or three weeks more.
This week we're going to look at a little history of the Second Amendment. To do that, we're going to go back before the Second Amendment, before even the Constitution, to the Articles of Confederation, which were drafted in 1776 and ratified in 1781. Article VI of that document required that:
every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.Note that these arms were in public arsenals, not private hands.
The Constitution was drafted in 1787 after the Articles of Confederation proved hopelessly inadequate to the task of binding the states into a nation. It was adopted by enough states to go into effect in 1788.
Article I, Section 8 of gives to Congress, among other powers, these:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;Article II, Section 2 also mentions militias:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States....Note that the Second Amendment was not the first time in the document where there is a reference to a militia and that the clear intent was to rely on the militias of the states to "execute the Laws, suppress Insurrections and repel Invasions" while avoiding the dangers of a standing army (which is why appropriations for an army could not be for longer than two years).
The Bill of Rights was drafted by James Madison in 1789. Faced with continuing concern over the possibility of a standing army and the threat that would create for a fledgling government, Madison offered a guarantee that states could continue to have militias. That was the purpose of the Second Amendment. Significantly, however, this was the original proposed text: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
There is no way any rational, sane person can read that text without recognizing that it was specifically referring to a militia - not to any "gimmie my guns" bull.
Firearms have been regulated in the United States from the very start. Laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813, in Indiana in 1820, Tennessee and Virginia in 1838, Alabama in 1839, and Ohio in 1859. There were similar laws in Texas, Florida, and Oklahoma. In 1893, the governor of Texas said that the “mission of the concealed deadly weapon is murder."
While people were allowed to have guns at home for self-protection or while they were out on the prairie, where they might need protection from animals or bandits, frontier towns usually barred anyone but law enforcement from carrying guns in public.
For example, a visitor arriving in Wichita, Kansas in 1873, in the heart of the Wild West era, would have seen signs declaring, "Leave Your Revolvers At Police Headquarters, and Get a Check."
No later than 1876, Dodge City, Kansas, had a gun control law. Check out the picture of a sign on Front Street in Dodge City in 1878: It says “The Carrying of Firearms Strictly Forbidden.” When by 1882 it had proved inadequate, the response was not to declare more people should have more guns, but to pass a stricter law, one that banned anyone "except County, City, or United States Officers” from carrying "any pistol, bowie knife, slung shot or other dangerous or deadly weapons."
Tombstone, Arizona, banned the carrying of deadly weapons in 1881. In fact, the famous "gunfight at the OK Corral" occurred in part because the Clanton and McLaury brothers refused to surrender their guns.
Turning to the courts, the first important Supreme Court decision about the Second Amendment was Presser v. Illinois, which was decided in 1886. In it, the Supreme Court found that the Second Amendment limited only the power of the national government to control firearms, not that of individual states. States could essentially put whatever restrictions on guns that they wanted. That decision was affirmed in Miller v. Texas, decided in 1894.
Now, this was before the idea of incorporation, the legal concept that the protections of the Constitution extend to the states as well as the federal government, became commonplace. So these decisions are not truly relevant to the legal terrain of today - but they do give more evidence to the fact that gun control laws have existed throughout our national history.
The next big case, the important one, was United States v. Miller, in 1939. There, a unanimous Court upheld the National Firearms Act of 1934, finding no conflict with the Second Amendment. The Court found that:
In the absence of any evidence tending to show that possession or use of a [weapon of the sort involved in the case] has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. ...Put another way, the guarantee under the Second Amendment was not an individual right but a collective one: It applied to the people as a whole, not to discrete individuals. For 69 years, that was precedent, relied on by all lower courts and occasionally referred to by the Supreme Court.
"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
For 69 years, that was the legal standard - until 2008, when our current reactionary Supreme Court, in the case District of Columbia v. Heller, by the narrowest of margins, 5-4, created out of thin air an individual right to own and keep guns.
So when people like Scalia and Alito and Thomas and Roberts claim they are interested in "original intent" and "plain meaning" and declare their devotion to "precedent," never forget that they are lying through their teeth. And the blood of thousands of victims of guns is on their hands: As of midday Tuesday, February 12, nearly 1,800 people in the US had been killed by guns since Newtown, twelve of them in Massachusetts.