The incredible history of the 2nd Amendment and America’s gun violence problem
Gun safety laws have a historical precedent in the 1939 court case U.S. v Miller.
Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University. She is also a staff writer at The New Yorker. A prize-winning professor, she teaches classes in evidence, historical methods, humanistic inquiry, and American history. Much of her scholarship explores absences and asymmetries in the historical record, with a particular emphasis on the histories and technologies of evidence and of privacy. As a wide-ranging and prolific essayist, Lepore writes about American history, law, literature, and politics. She is the author of many award-winning books. Her latest book is These Truths: A History of the United States (2018)
JILL LEPORE: One of the more interesting theories about the nature of gun violence in the United States and the quite high homicide rate in the United States, both of which distinguish the United States from other similar nations, has to do with at what moment in time the United States became independent and why the Second Amendment ends up in the Bill of Rights, which is written by Madison. In the theory it is that most states, that is nation states, pursued a historical course that led to the state having a monopoly on violence before the state became fully democratized, that is to say the government essentially seizes the weapons and declares that people can't be kind of holding their own weapons for the sake of wielding kind of satellite forms of armed power against the state and then societies become democratized. So if you think about the United Kingdom like you could think about it in those terms. That doesn't happen in that sequence in the United States, the United States becomes democratized much earlier.
From early in the 17th century British mainland colonies and island colonies as well elect their own local representatives to their colonial legislatures, they pass their own laws. There is a spirit of independence in colonial governments that you don't see in county governments in England say at the same time historically. And among the important elements of that spirit for many people by the 1760s is the idea that in so distant set of colonies from a ruling imperial government, what is dangerous is when people's ability to express themselves politically is interfered with by a standing
army. So the great bugbear of 18th century mainland colonists is the standing army, especially in the north. The south doesn't have as much of a problem with a standing army and Britain's Island colonies in the Caribbean don't have a problem with the standing armies.
A standing army is an army kept by the king in times of peace and quartered among the people or near the people. And Britain's Caribbean colonies what they really, really want is a standing army because that's a bunch of English colonists who are vastly outnumbered by their enslaved African workforce and they want to be defended by the British army so they're forever indeed asking for a standing army to be in the islands to defend slave plantation owners against their own slaves who were constantly rebelling. And that is to some degree the same case in the southern colonies in the mainland. In the north in particular, particularly in New England, the idea of a standing army is the worst form of political tyranny and this assumes a new political prominence after 1768 when.
In 1765 the Britain Parliament passed a Stamp Act, which effects all the British colonies, but the place that really rebels is New England. They don't want to pay these stamp taxes. And a series of protest lead to the repeal of the Stamp Act, which is then replaced with the Declaratory Act, in which the Parliament says yeah we'll repeal the Stamp Act because you really complained, but we declare that we have the right to tax you. And then there's a new tax on tea and the Townsend Act in 1767 and the colonists continue to be rebellious, in Boston in particular.
And the king sends two regimens of the British army to Boston to occupy the city. They get off their ships; they march up the Longworth; they occupy the city for years. And they're much despised and it's conflict between the people of Boston and the occupying army that leads to the Boston Massacre in 1770. And the rhetoric in patriot newspapers tends to emphasize the importance then of the people's right to bear their own arms as a potential insurrection against the tyranny of a standing army. So of course the American Revolution breaks out in 1775, when that occupying British army in Boston marches to the countryside, marches to Lexington and Concord to seize the arsenals kept by colonial men who have kept arms and ammunition in powder houses in Concord and Lexington and it's their defense of their supply of arms that is the spark to the Revolutionary War.
So there's a mythos in New England in particular about the importance of bearing arms against a tyrannical power that is your own government. So a lot of that finds expression in the founding documents in the insistence on a right to revolution. Like we're declaring our independence and we're erecting a new government, but if this government ever fails to serve the people they can topple it and erect another government. This right to revolution is instantiated in the founding documents. And when the constitution is sent to the states for ratification in 1787 anti-federalists, among the things that they complain about, is that there is no Bill of Rights and a lot of people like Alexander Hamilton say well there shouldn't be a Bill of Rights because this isn't a monarchy. In a monarchy the king has all the power and so the Bill of Rights, the list of rights and the Bill of Rights or the Declaration of Rights in England's a list of powers that the king is willing to say you people still have these rights, but we've just formed a government that is constituted by the people so we already have all the rights. If we make a list we're actually enumerating rights and therefore limiting the number of rights that we have. So there's a big debate, actually one of the most heated debates of ratification concerns whether there should or should not be a Bill of Rights in the first place, that it is both unnecessary and dangerous as Hamilton would say.
Madison comes to believe Madison had not thought it was necessary to have a Bill of Rights; Jefferson thought it was. People have big arguments about this and finally Madison says you know what, it's pretty clear the thing is not going to get ratified without a Bill of Rights so Madison agrees to draft a Bill of Rights. The Bill of Rights goes through many different drafts. It is severely edited in committee and by Congress. There's a much longer initial list. Each of the ratifying conventions sends in a list of what they want to have be rights. Eventually Madison narrows it down to 12 and Congress reduces that to ten, of which the second is, as eventually ratified, the Second Amendment that we have now that concerns the rights of the people to bear arms.
But the language of the Second Amendment is really important because it's been much parsed over a well regulated militia being necessary, I don't even know, the people's right to bear arms shall not be infringed, there are these two clauses. And a lot of the tension and interpreting the Second Amendment comes from which clause dictates the meaning of the sentence itself. So all this prefatory by way of one way to understand that right is as a right of the people to not be overwhelmed by a standing army, that if the government decides to have an army kept in peacetime to implement federal policy the people should be able to have arms so that they could resist that if that were the only recourse left. If everything else fell apart politically and the only recourse left was to wage a military insurrection against your own government
That is the insurrectionary interpretation of the Second Amendment, which I would say on the whole political historians do not find persuasive nor do legal historians. That was the interpretation of the Second Amendment that was much cherished by the militia movement in the 1990s. If you remember Timothy McVeigh the Oklahoma City bombing was a big advocate of the insurrectionary interpretation of the Second Amendment. All those guys in the Michigan Militia this was the way that they cherished and understood the Second Amendment that it gave them the right to bear arms, to form militias to defend themselves against an over powerful and armed federal government.
There's not a lot of historical evidence to support that particular interpretation, but there are a couple of things that are important to note about the subsequent history that is after the ratification of the Bill of Rights. One is that certainly between the ratification in 1791 and the first major Supreme Court case concerning the Second Amendment in 1939 people regulate gun ownership all over the country, states, municipalities. Firearms are a very dangerous piece of property, especially cities, but many states regulate their ownership and use in a variety of ways from the very beginning. It's the thing in a lot of Western towns that you have to check your weapons with the sheriff's office when you enter a city. There are just signs posted as if the way you would have to register at a hotel when you come to town or show your passport at a hotel in order to register, you have to check your gun at the sheriff's office.
There are all kinds of local legislation against concealed weapons caring, especially, again, in the West, also in cities in the East. There's a quite extraordinary amount of specific local and state legislation that regulates gun ownership or the use of firearms, especially concealed weapons. None of which interferes with people's ability to say hunt on your own property, this has to do largely with density population. These things are not struck down as unconstitutional. For one thing the Bill of Rights doesn't apply to the states until the 20th century. The Bill of Rights only says what the federal government can and cannot do until the Bill of Rights is incorporated amendment by amendment, and that doesn't even begin until the late 19th century.
So the Bill of Rights wouldn't restrict states from passing what we would call gun control laws or gun safety regulations would be a better way to talk about them. There's just no constitutional debate and no one brings it to the fore. In the 1930s the federal government for the first time passes legislation instituting gun safety measures with the Federal Firearms Act and the National Firearms Act, which are I think 1934 and 1938. And they're because of the rise of the machine gun. Think of like the Al Capone like guys with the machine gun in the violin case kind of shooting people on the street, there is a lot of pressure on the federal government to consolidate state laws, which have prohibited fully automatic weapons and required licenses for handguns or required gun safety instruction or required that guns cannot be concealed and carried into an urban environment or whatever the various state measures are. So most of those things are kind of consolidated and formed this new wave of federal legislation.
And when those two federal laws aren't in fact challenged on Second Amendment grounds, because of course the Second Amendment does obtain to federal legislation, the case goes to the Supreme Court in 1939 in U.S. v Miller, which decides unanimously that those laws are perfectly constitutional, the Supreme Court is declaring that the Second Amendment does not protect the rights of an individual to carry firearms, what the Supreme Court says in this unanimous ruling in 1939 is the Second Amendment protects the right of people to form militias or to participate in the common defense. It really doesn't have anything to do with, for instance, hunting. It's like historian Gary Wills once said, "One does not bear arms to shoot a rabbit." Like bearing arms it evokes a military use for the common defense. Not for insurrection against your own government, as well as among the people would say is not a thing that any government rationally would put in its on founding documents, but to participate in defense of the country against a common enemy.
So surprisingly uncontroversial throughout the 1930s; there's a tremendous amount of popular support for these restrictions. And they're not understood to impede people's ability to own guns or to hunt or to go do target practice or the many things that sportsman in particular want to do. And those pieces of legislation in the 1930s are supported by the National Rifle Association, which had been founded in 1871 as a sportsmen's organization at a time when rifle shooting, target shooting become a pretty avid past time in the United States. And the NRA is supporting gun use instruction and target shooting competitions and sportsmen's guides and supports the National and Federal Firearms Acts in the 1930s.
So much of this changes in the 1960s when Lee Harvey Oswald shoots John F. Kennedy with a gun that he ordered from American Rifleman, which is the NRA's magazine. Nevertheless of the gun control act of 1968 passes with the NRA's support. But in the 1970s the NRA leadership is subject to a coup by people who want to use the Second Amendment in a new way and to use the rights discourse of the rights revolutions of the civil rights and women's rights and gay rights movement to energize a new political constituency, conservative white men, and to give them a political battle to fight for as a constitutional right that is threatened by a liberal Supreme Court. And it's a big part of our polarization in the last 40 years of the United States has actually been around arousing the sense of fear that gun rights, which are some now fundamental right for an individual to bear arms as interpreted by the NRA, comes to fuel a huge decades-long spasm of polarization in what, from any historical standard, is a quite controversial and novel interpretation of the amendment.
- In 1765, the Britain Parliament passed a Stamp Act, but people in New England rebelled against it. In response to this, the king sent two regimens of the British army to Boston to occupy the city. They were much despised by Bostonians, and this occuptation led to the Boston Massacre in 1770. Since then, many have interpreted the Second Amendment to mean the right of the people to bear arms to aid them in a possible insurrection against the government.
- The Supreme Court in 1939 in U.S. v Miller, decided unanimously that gun safety laws are perfectly constitutional — the justices declared that the Second Amendment does not protect the rights of an individual to carry firearms. They said the Second Amendment protects the right of people to form militias, or to participate in the common defense.
- According to many historians, bearing arms evokes a military use for the common defense — not for shooting rabbits or for the insurrection against one's government. It seems the purpose of the law is to allow citizens to participate in defense of the country against a common enemy.
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