The History of the Second Amendment and How it Applies Today
The Second Amendment is easily one of the most heavily debated sections of the U.S. Constitution; from the average citizen to historian, politician, to judge, there doesn’t seem to be one clear interpretation of the founding father’s intentions for the citizenry to have access to firearms. If we look at the history of how the Second Amendment came to be, why it was written into the Constitution, and the period in which all of this took place, the picture starts to become a bit clearer though.
The idea of an armed populace was not new at the time the Second Amendment was written. As far back as the Roman empire, citizen soldiers were the backbone of the army until a professional soldier class emerged. Taking inspiration from several such instances of history, in the 16th century, Queen Elizabeth I instituted a law in which citizens from all levels of society were required to aid in the defense of the realm.1 This in turn carried over to the New World, where farmers and colonists united in defense of their homes against threats both foreign and domestic.
Gun control simply wasn’t a thing during that time. With the colonies rebelling against England and finding themselves fighting a war as a result, all focus was on winning independence. Before the start of the Revolutionary War, the colonies were not organized into a nation, and thus there were no laws governing them all (that had not been set by England). After the war, the Founding Fathers were focused on setting up laws that would allow the newly formed United States to thrive rather than restrict it, causing another rebellion in the process. The reason this is important to note is that it belays the mindset of those writing the Constitution and their intentions in what is laid out since in modern times people seem unable to comprehend the true meanings.
Private citizens were not restricted from owning the same weapons of war that the government had access to. For some reason, today people like to think that the average gun owner is incapable of safely handling the same full-auto rifles that the military and law enforcement are given access to. During the time the Second Amendment was put to paper, anyone with the means to afford gear was welcome to own anything they like. Repeatedly historians have been consulted on what restrictions might have been imposed during this time, and time and again they have stated that there is no record of any arms restrictions (in terms of the citizenry owning anything). The greatest example of this is the privateer warship. Privately owned by wealthier citizens, these vessels were given wartime commissions to conduct a variety of functions (capturing enemy ships, protecting trade ships, and so on). Decked out with cannons and other artillery, not only were they equal to the naval vessels of the time but often were better equipped due to the funds available to their owners.
Post-war, the United States was distrustful of another strong government. People were afraid of another King being instilled and the war having been fought for no reason. There was general distrust for one person having the sole source of power, and that is a big reason for the creation of the new system of government for the United States. To that end, the Constitution outlines limits of power for the government, not the limitation of what the citizens can and cannot do. This distinction is vital to understand. When the Constitution says that people have free speech, it is saying that government cannot suppress their ability to speak freely. When the Constitution says that people have the right to keep and bear arms, it is saying that the government cannot confiscate their guns or prohibit them from buying, making, or owning them. Why is that point so important?
The Second Amendment was written to detail exactly what people should do if the government they created became corrupt. Up until the Revolutionary War, the colonies only had a standing army in a time of war, with citizen militia being called upon for quick defense from a lesser threat. The war proved that a militia was not up to the task of fighting the better-trained forces of an organized force of professional soldiers; so the federal government that was being created was given the ability to raise a standing army in times of peace. This caused many people to worry that these troops would simply be used to oppress the very people that had put them in place.
The solution to this was guaranteeing the population had the means necessary to not only protect itself from the government but to topple it if that need arose. Americans at that point had already proven they had the willingness to put their lives on the line to secure their freedom, and ensuring that everyone had the right to firearms in their homes, and bear them against ANY threat foreign or domestic was of paramount importance, especially to the section of citizens known as Anti-Federalists.
Why is the history of the Second Amendment and the circumstances of its creation so important? To put it plainly, there are many alive today that would seek to abolish the right of the public to keep and bear arms and have been chipping away at that right for a very long time. Throughout the history of the United States, no other right guaranteed to the people in the Constitution has been tread upon as much as the Second Amendment. The very ideals it was written to protect have been watered down, downplayed, and flat-out spit upon time and time again as the government has imposed one restriction after another on the very people they are supposed to represent. Comparing the mindsets of then and now makes the contrast very clear.
Today, many people would have you believe that the Second Amendment only covers hunting and protecting your home. While both of those activities are covered under the right to keep and bear arms, that is not the entirety of its scope, and in truth, only a very small part of things. During Colonial America, people did not need to be told they were able to hunt. The simple truth was that hunting was a way of life in the New World. While there were domestic livestock and markets, location, weather, and other factors did not mean everyone had guaranteed access to them for stocking up on what they needed. Hunting was commonplace and necessary, especially in more remote settlements in the early United States. Why then would the Founding Fathers deem it necessary to make sure people knew they could hunt if everyone was already doing it?
Early America was a brutal place. Piracy was still not uncommon on trade routes and coastal cities, bandits were common (especially in the turmoil during and just after the war) and there were still displaced Native Americans that were less than friendly with many colonists. Defense of one’s home and the property was another common aspect of the life of a colonist during these times. If someone broke into your home, tried to hurt your family, or steal your property, you shot them. That was simply how things were. Pirates boarding ships were killed on sight or hung later as a warning to other pirates. There was no argument on whether the offender’s life was less important than your property if you had a duty to retreat, or any of the other modern considerations people have to account for now. If you had to stop someone from taking what was your’s, from killing your livestock, raping your wife, or altering your ability to live your life, you put a musket ball (or a cannonball if dealing with a ship) through them and went about your day.
Many modern interpretations of the Second Amendment rely on the “A well regulated Militia, being necessary to the security of a free State,” section as defining freedom, while discarding everything else. They argue that only groups such as the National Guard enjoy the protection of the Second Amendment, as they are the closest thing we have to a militia with the duty of protecting the state. Where that argument falls flat is that the well-regulated militia referred to in the Constitution was the citizenry, those who were called up at moment’s notice from their daily lives, made up of people like you and me. Where that differs from the National Guard is that the Guard has a dual role, both duty to the state as well as the Federal Government, being an extension of the military. That is exactly why members of the National Guard can be deployed overseas, sent to fight foreign wars, etc. They are bound and overseen by the very people that could potentially be the threat worth fighting, and as such, differ from both the intent and exact wording of the Constitution, as they are not necessary to the security of a free State.
What changed from Colonial American to modern times? What took us off the path of owning the tools necessary to protect our liberties from any threat present, be it invading army or tyrannical government? To answer that we must step outside the scope of just guns for a bit, and fast forward almost a hundred years. Between the signing of the Constitution and modern times, there were several instances of States attempting to limit the scope of the Second Amendment, and eventually, the Federal Government placed restrictions on private citizens’ ability to own and possess some firearms (and by extension, some gear and accessories).
In the early 1800s, the first attempts to impose restrictions on firearms occurred. Kentucky was the first offender when it tried to limit people’s ability to carry concealed firearms.2 This directly resulted in the first interpretations of the individual rights protected by the Second Amendment, though it wasn’t officially upheld in court until 1822 in Bliss v Commonwealth. In that case, the court ruled that “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment.”3 For the first time, a court had heard a case and then upheld that the Constitution granted individuals the right to own and carry the means to defend themselves from threats.
Conversely, a second case twenty years later, ruled in exactly the opposite direction, creating the two camps of interpretation concerning the Second Amendment. In State v Buzzard in 1842, the Arkansas High Court decided that the right to bear arms was a political right rather than an individual. Their exact ruling would have lasting consequences, as later it would be brought up for some of the first federal gun control laws. The ruling by the Arkansas court was, “That the free white men of this State shall have a right to keep and bear arms for their common defense. That the words ‘a well-regulated militia being necessary for the security of a free State’, and the words ‘common defense’ clearly show the true intent and meaning of these Constitutions [i.e., Arkansas and the U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms.”4 Here we see the first time that a court specifies that only free white men are granted the rights of the Constitution, while at the same time saying that they do not get them individually, but collectively as a political body.
Post-Civil War, the Second Amendment was heard for the first time on the federal level. As the 14th Amendment was drafted, the Privileges and Immunities Clause was seen as a threat by many of the southern states. The fear was that former slaves would arm themselves and seek out their former masters for retribution. As a result, United States v Cruikshank saw the Supreme Court have to decide on the scope of what the Second Amendment applied to in terms of limiting the government’s power. In their landmark case, it was ruled that the Bill of Rights, the 14th Amendment, and specifically the Second Amendment did not limit the power of the states, but rather only the federal government. This was a huge blow to the right of any black person to own a firearm, as many southern states already had legislation in place making the process of owning a firearm either tedious or outright illegal. Examples of this would be Mississippi and Louisiana requiring police and/or employer approval for people of color to own firearms, Alabama completely outlawing the ownership of firearms by Black Code legislation, and North Carolina passing Black Code laws stating that the rights of black people can be changed by legislation as the state saw fit. The fact that Supreme Court upheld that the States had the right to make laws in direct opposition to the Constitution would be a trend that continues to this very day.
In the 20th century, we saw the federal government begin to widen the rift of power between themselves and the people they would represent. Over the last 90 years, there have been numerous restrictions placed upon U.S. citizens, stripping them of their ability to own certain firearms, their ability to buy firearms promptly, and the enforcement of unjust laws in areas deemed “unpopular or dangerous”. These infringements have occurred under both Republican and Democratic leaders, demonstrating this isn’t a political party issue so much as an oligarchy versus the common man.
In 1934, the National Firearm’s Act was passed, marking the first major firearm reform of the 20th century. Certain firearms, such as short-barreled rifles and short-barreled shotguns, as well as machine guns (though it was used to broadly classify anything that was fully automatic) were designated under the jurisdiction of the ATF and required special licensing to purchase or legally possess. According to the official statement on the reasoning of this law, it was said that the NFA was passed as a direct response to the “Valentine’s Day Massacre” of 1929 in Chicago, and as an attempt to combat the post-Prohibition violence. Not only did this effectively let the federal government know who owned certain guns that were on par with what law enforcement and the military were using at the time, but it also priced most of the nation out from even being able to own them. To purchase any of the aforementioned firearms, a federal firearms tax stamp of $200 had to be paid, which by current standards would be the same as requiring people to pay $4,422.55.
Five years later, the first case related to the NFA would play out in United States v Miller. In this case, Jack Miller and Frank Layton were charged with transporting and possessing a double-barreled shotgun of fewer than 18 inches, in violation of the NFA. At their trial, the defendants filed motions that the NFA was an attempt to usurp police power reserved to the states and as such was unconstitutional, to begin with. The circuit court upheld the motion, though it was done by a judge that knew that Miller had just given up all of his accomplices in a string of robberies, and as such, would never be able to appear again in court. Summarily, the government appealed directly to the Supreme Court, which heard only one side of the case, as Miller had passed away and his attorney did not show up, resulting in the Court upholding the NFA.
The second half of the 20th century saw much more of the same in terms of unconstitutional legislation being passed and subsequently upheld by the federal government. The Gun Control Act of 1968 was passed after the assassinations of John F Kennedy, Robert Kennedy, Martin Luther King Jr., and Malcolm X. The stated purpose was to limit the transfer of firearms between states except amongst licensed dealers and importers, while at the same time limiting the sale of firearms to “prohibited persons.” Despite two prominent leaders of the black community having been killed, this law was in part, aimed at keeping people of color disarmed and unable to fight back. This was evident even to those who regularly spoke out against firearms, with one of the greatest examples being the journalist Robert Sherill. In his book, Sherill wrote, “The Gun Control Act of 1968 was passed not to control guns but to control blacks, and since a majority of Congress did not want to do the former but were ashamed to show that their goal was the latter, the result was they did neither.”5
Almost twenty years later, the Firearms Owners Protection Act was passed in 1986. This was largely due in part to a Senate subcommittee that had been studying the Second Amendment and cases related to it in 1982, which saw a series of systematic abuses by the ATF. According to that study, “75 percent of ATF prosecutions “were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.”6 While at first glance this might seem like a step in the right direction, especially considering that the National Rifle Association supported the Firearms Owners Protection Act, it only marginally rolled back the restrictions imposed by the GCA. Rifles could be sold between states, and transporting firearms through states was now legal as long as the owner was legally in possession of them, but handguns were still somewhat restricted, as was the sale of armor-piercing ammunition. Additionally, the FOPA was the final nail in the coffin for the civilian ownership of fully automatic firearms, as nothing manufactured after the passing of this law was legal to sell or possess unless you were a specific FFL holder. Once again, the federal government saw fit to strip civilians of their ability to maintain a level playing field in terms of firearms that could be used against them, giving the government a distinct advantage.
The Clinton administration built upon the existing restrictions to reach new heights of gun control extremes. Under this regime, the Public Safety and Recreational Firearms Use Protection Act (more commonly known as the Federal Assault Weapons Ban was passed. This provision to a much larger law designed at ending violent crime, limited the production and sale of “assault weapons”, certain semi-automatic firearms mentioned by name, as well as any containing two or more features from an extensive list, as well as magazines deemed high capacity. At this point, civilians were not only prevented from owning the fully automatic rifles the military had but they were now being stripped of access to the semi-automatic versions currently in production.
Additionally, the Clintons saw fit to include provisions to outlaw the ownership of firearms in federal housing. This meant that anyone on federal assistance was prohibited from possessing firearms in their homes, whether they were legally owned or not. Thankfully, this plan was rejected by the House of Representatives, though more than one state did introduce it on a state level. This is another clear example of singling out an economic class, compromised predominantly by people of color.
The legacy of the Second Amendment being tread upon continues to this day. Though this article details several significant changes to the Second Amendment over the years, it is only a snapshot of the total picture. Things like the Brady Bill, Operation Ceasefire, state initiatives to ban firearms and magazine limits, and more still exist and are enforced. Educate yourself as best you can, for knowledge is power, and be prepared to defend your rights in whatever means you deem necessary, as this fight is not over. Now more than ever, the U.S. Government is filled with self-serving, corrupt officials that care only about ensuring they remain in power at any cost. A scenario like this is the very reason the Second Amendment was put into the Constitution, to begin with, but over time we have strayed from the path that won us our freedom and forgotten the lessons of our past. 1 https://www.britannica.com/topic/Second-Amendment/Origins-and-historical-antecedents
2 Cornell, Saul (2006). A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. New York: Oxford University Press. ISBN 978-0195147865. OCLC 62741396.
3 The United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Government Printing Office, 1967, p. 246.
4 State v. Buzzard, 4 Ark. (2 Pike) 18 (1842).
5 The Saturday Night Special and Other Guns, Robert Sherrill, p. 280, 1972)
6 Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-seventh Congress, Second Session. U.S. Government Printing Office. 1982. Digitized September 30, 2008.