The Amendment through 18th Century and 21st Century Lenses
An in-depth “originalist” or “textualist” look at the 27-word Second Amendment lays bare the Amendment’s shortcomings and undercuts modern day political interpretations seeking to justify open door access to firearms in today’s America. Such interpretations have been demonstrably detrimental to U.S. society and to broader public safety and order. The lives of innocent Americans and law enforcement officers are lost needlessly every day as a a result.
Remarkably, Justice Thomas, writing for the majority in NYRPA v Bruen, chose to reshape history by arguing as a starting point that “self defense” is the “central component” of the Second Amendment right although those words appear nowhere in the Constitution. The majority’s specious case and convoluted jurisprudence defies understanding or acceptance, and certainly U.S. society will continue to pay a huge cost in human tragedy and economic loss. The amici curiae briefs filed by the gun lobby in support of Rahimi seek to reinforce and build on the flaws and misrepresentations of both Bruen and Heller.
The SCOTUS decisions in Bruen and Heller have confirmed the need to tackle the Second Amendment’s deficiencies and dangers head on and publicly, starting with a broad discussion of the words and what those words meant when written and what they mean today, including in the context of past Supreme Court decisions and Congressional legislation. We need a truthful nonpartisan discussion at the national level, a discussion apart from political parties and prejudices.
What follows seeks to sketch out some critical issues and aspects that have been ignored in the fifty years of the gun lobby’s full-throated communications and public relations campaign which included success in re-writing history to achieve the gun lobby’s political goals, now in full view with the Thomas decision.
So let’s start with the Constitution.
The U.S. Constitution had significant deficiencies when it was adopted in 1789 which were only partially redressed by the Bill of Rights in 1791. Over the succeeding two centuries, seventeen additional amendments were passed to correct these deficiencies and to achieve “a more perfect union” as stated in the Preamble to the Constitution itself.
Two amendments sought to right two particularly egregious wrongs. The 13th Amendment ended slavery after a Civil War and the deaths of hundreds of thousands. The 19th Amendment granted women the right to vote after more than a century of struggle.
The Second Amendment, used since the 1970s to justify a proliferation of firearms, including military grade weapons, within U.S. society, stands out as a third significant shortcoming that merits an urgent modern day effort to resolve. A close reading of the record of the First and Second Congresses makes clear the focus of the Congress – and the resulting 2nd Amendment draft and 1792 Militia Law – was on national security and how best to ensure a viable militia structure in those early years in establishing a true national government. Indeed, the Constitution’s Article 1, Section 8 has crystal clear language about the militia and its role (including suppressing insurrections, as was done in 1794 by Washington in the case of the Whiskey Rebellion in western Pennsylvania).
Taking the Second Amendment’s text concept by concept makes this abundantly clear: “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. Some elements – militia, the security of a free State, and arms – deserve particular thought and attention today, particularly by the Supreme Court as it considers the Second Amendment cases that come before it.
A well regulated Militia…: Heller and previous Supreme Court cases address the concept of “militia” but disingenuously dismiss the country’s basic laws governing militia, legislation dating from 1792 and 1795 superseded by the 1903 Militia law that established the National Guard and clearly limited the arming of the members of the National Guard to arms supplied and inventoried by the national and state governments. The Federalist Papers and the proceedings of the four month long Constitutional Convention provide context but the debates and decisions of those members of the First and Second Congresses are what truly matter and should be the focus of discussion and analysis. But, as history has shown, with the Civil War one particularly decisive event and the 1903 legislation another, the Founders’ discussion of militias has little relevance today, if any.
Gun lobby supporters of the flawed interpretation of the Second Amendment totally ignore the Constitution’s Article 1, Section 8 on militia and the 1792 militia law and blindly assert that individual citizens have a right to arm themselves to defend against potential freedom-robbing encroachment by “the government.” By this reasoning, a 21st century Whiskey Rebellion, or perhaps even a new Civil War, could be justified to combat overstepping government if individual citizens judge their rights are under threat. The January 6, 2021 insurrection was just such a telling example, where a mob, incited by incendiary political speeches, sought to block the legitimate and fully validated Constitutional process of certifying the results of the 2020 presidential election.
But such reasoning is incredibly hollow and flawed, as was the basis for the January 6 assault on the Capitol. Many of these same people argue vociferously that the U.S. Constitution is mankind’s best. The Constitution’s fundamental principle: informed electorates throughout the states choose Congressional delegates to represent them responsibly and to work together to enact national laws of benefit to the people and country. Any excessive government “encroachment” would thus be the direct result of democratic decisions taken by the citizens’ elected representatives and President. By their logic, when the time comes for confrontation, Second Amendment die-hards anticipate fighting U.S. law enforcement, the National Guard or even the U.S. Army itself.
But, if they were to prevail, they would no doubt institute a constitution similar to what we have today. One thing is clear: recent actions and preparations by self-appointed citizens and civilian militia groups demonstrably undermine the rule of law and thus the Constitution itself. This point needs to be made by the leaders of all political parties publicly, forcefully and repeatedly.
Being necessary to the security of a free State”: What does security mean after a Civil War, extensive legislation and jurisprudence, world wars and today’s ever-present threats of international, domestic and cyber terrorism, nuclear proliferation and/or annihilation, worldwide pandemics, climate change, subversive disinformation and manipulation of social media, and cut throat economic competition, not to mention more than two centuries of intense national economic, political and social development?
How does the Founding Fathers’ militia concept relate to our national security in such a world of global threats and where our neighbors Canada, Mexico or the Bahamas represent no military threat at all. Simply stated, it doesn’t.
What is a free State of the Founders’ conception and what does it mean in 21st century America? Is security a state level responsibility in a world of global threats? It’s impossible to assert that with any credibility.
More directly for 21st century America, what does a well organized militia contribute to ensuring public security in a free State? Honoring law enforcement officers each year with National Police Week, we all should be doubly aware of the dangers they face every day, every hour, every minute. And we should offer more than condolences to the 61 officers who lost their lives to gun violence in the line of duty in 2022. That they are taking casualties, and that the nervousness of some officers is taking the lives of innocent fellow citizens both should be powerful motivations to find a way to decrease the threats and risks to officers and to citizens.
At this juncture, the 232-year old Second Amendment is a major contributor to the tragedy suffered by the police and citizens alike. No, a well organized militia does nothing to support public security in a free State today.
The right of the people: Who were “the people” in 1791? Did “the people” include those without political franchise, starting with women who represented half of the population? Did the people include women, slaves, and white non-property owners? This goes to the heart of the Founding Fathers’ social and political mores, how they debated and decided and to what extent did they seek to maintain their own respective self-interests. How do today’s so-called “Constitutional textualists” not recognize the willful disfranchisement of women for over a century as a glaring fault of the Constitution, one that took 130 years to correct as times, mores and social practices changed so fundamentally and thoroughly. .
The official U.S. census for 1790 sheds some light: 1,598,844 white males, 1,541,262, white females, 59,150 other “free persons” and 694,280 slaves. We know that in most states suffrage only extended to those “propertied” white males (although women could vote in New Jersey until 1807), and Washington was elected by “electors” chosen by state legislatures and not via direct popular election. Did “the people” extend to include those of minority age? It is no wonder that there are extensive ongoing legal debates related to the Constitution’s various references (without definition) to “people” as well as “persons” and “citizens”.
To keep and bear: At first glance this phrase would seem to be the least debatable element of the Amendment text, but the militia context of the Second Amendment and the 1792 Militia Act, enacted less than six months after the Bill of Rights, clearly demonstrates that “bearing” arms is indicated in the circumstance of militia participation. References to centuries old English single shot musket firearms practices in the gun lobby friends of the courts briefs in NYRPA v Bruen simply are irrelevant to 1791 and today.
In 2023, as a result of a fifty year long concerted gun lobby public relations campaign, bearing arms has taken on a broader, open ended sense, to include open carry at individual discretion of weapons of incredibly firepower, weapons unknown and unforeseen by the drafters of the Second Amendment. At the same time, the prevalence of arms among the population has created an ever-present risk to U.S. public safety and law enforcement authorities who work daily facing the threat of gun violence. The clear 21st century irrelevance of the prefatory clause (well organized militia necessary to the security of a free State) makes it difficult to sustain the concept of “keep and bear”, the jurisprudence acrobatics of Justices Thomas and Scalia notwithstanding.
Arms: Justice Scalia’s suggestion that discussing the Founders’ understanding of “arms” is “frivolous” is convenient but callous and unconvincing. In fact, “arms” is the most impactful word in the Amendment, certainly today, and one that “originalists” and “textualists” like Justice Scalia ignore or deliberately gloss over. The “originalist” starting point is simple and direct: what did the drafters of the Bill of Rights understand “arms” to mean and how did they assess their capabilities and impact on public safety and security?
It is unreasonable to attribute insightful powers of anticipation to the Founders in this regard. Although the Western world was in the initial decades of the Industrial Revolution, the more sophisticated, multi-shot firearms of modern armies were still seven decades and three generations away. Such common weapons as knives were not relevant to the militia context, although of course bayonets on muskets or rifles may have been. So it would seem logical and reasonable to assume that the Founders could only assess the societal impact of all of the Constitutional and Bill of Rights provisions on the basis of their reality, experience and late 18th century technologies, the musket and single shot pistols.Indeed, they did exactly that when the concurrently discussed and debated the notion of a “well regulated” militia and codified it as such with the May 8, 1792 Militia Act which required all white males between 18 and 45 years of age to bring their own “good musket or firelock” and 24 cartridges to their service in the militia when called.
This understanding informed the Supreme Court’s limited past ventures into determining “arms” relevant to the Second Amendment when, in Miller, it confirmed the constitutionality of banning of sawed off shotguns and its acceptance of the general approach of 1934 legislation limiting firearms such as those used by the gangsters of the Prohibition era and after.
Hopefully, any national discussion of the Second Amendment, and any SCOTUS discussion and debate related to the Amendment and firearms availability in the U.S. will give due and relevant attention to defining what “arms” were envisioned by the Bill of Rights drafters and what impact on society such “arms” were intended to have. Unfortunately, neither the Thomas majority opinion in NYRPA v Bruen nor the Scalia argument in Heller did this, and in fact both were dismissive of the issue and concern — and the thousands of innocent victims or gun violence — throughout. This should not be an acceptable conclusion for public policy and must be addressed at its substantive core.
It is simply ludicrous to suggest that the Founders’ embracing of the word “arms” anticipated and acquiesced in a future where a ten minute, “nine rounds a second” barrage by a single shooter would kill 58 people and wounded another 600 in October 2017 when the best a late 18th century marksman with a musket could manage was three rounds a minute with questionable accuracy at 100 yards and with constant reloading.
Shall not be infringed. What did infringe mean in 1791, and in 2023? Perhaps Samuel Johnson’s 1755 dictionary of the English Language still is a useful guide, particularly since the 18th century definition is mirrored by Merriam and Webster today: (1) To violate; to break laws or contracts. (2) To destroy; to hinder.
It is remarkable the extent to which the Second Amendment has been reduced to “shall not be infringed” sound bites when a thoughtful reading from an “originalist” perspective reveals the meaningful and substantial gulf between the Founders’ 1791 reality and today’s hard-sell conventional interpretation based on a deliberately questionable historical narrative. It is also remarkable to think that, in writing the Second Amendment, the Founders would have knowingly created conditions that would seriously threaten public safety and security as they exist in the United States today. Four words of asserted determinism following 23 words of clear historical context should not carry the day when thousands of lives and U.S. society’s fundamental stability and welfare are at stake. And now Justice Thomas disengenously declares that “self defense” is the “central component” of the Amendment in a SCOTUS opinion tracking closely with the gun lobby’s PR efforts over decades.
As the foregoing has shown, a national discussion and debate on the Second Amendment – and its serious 21st century divergence from its 18th century long ago roots – is urgently needed today, doubly so a the Supreme Court deliberates in the case of U.S. v Rahimi. Future generations of Americans deserve it.
#SCOTUSits2023not1791