Sunday, July 02, 2006

The Constitution and Guns

Disclaimer: Please see this retraction of much of the content of this post. CB 7-15-06

For the last week or so I've been reading Arming America: The Origins of a National Gun Culture by Michael A. Bellesiles, Professor of History at Emory University and Director of Emory's Center for the Study of Violence. In his book Bellesiles systematically debunks many of the "myths" (I still hate the erroneous notion that myth is "false," though the "myths" which Bellesiles debunks are false myths - that is, they are meaning producing stories which are based on falsehoods) concerning the history of guns in America.

There is a modern notion that America has always been an armed nation; that boys were given guns by their fathers at birth and taught to be expert marksmen defending their families and putting food on their tables. There is also a notion that European colonists in America destroyed the indigenous populations principally because of the technological advantage that guns gave them. In his well researched and gripping book, Bellesiles uses both contemporary documents and some well reasoned arguing to demonstrate that neither was the case.

America was not, at its beginning, a well armed nation. There were few guns in America, even up to the time of the Revolution, and many of them were inoperable. Bellesiles bases this claim both on documents from the time and on the fact that there was no way for Americans to manufacture guns, and few Americans qualified to repair them.

But, when dealing with the social problem of guns in America, debunking a few historical myths has little real power. So the American gun culture was built on a lie. Big deal; the right to bear arms is preserved in the Constitution, isn't it?

In chapter seven of his book, which I just finished reading (pardon me if I'm a little bit excited, since this is the sort of argument I was looking for when I spent what little money I have on this book!), Bellesiles places the Second Amendment of the Constitution in its historical context, and demonstrates that the right to bear arms preserved in it may not be as far reaching or as inalienable as the American gun culture would have you to believe. What follows is an extended quote from that chapter, which I hope will produce a nice patriotic discussion (the 4th of July is coming up, after all!) about gun control:

Historians have amply demonstrated the difficulty of ascribing to the framers of the Constitution a consensus on the original intent of many of its clauses. The Constitutional Convention hammered out a document full of compromises and barely obtained concessions. On one point at least there was no disagreement: Congress should arm the militia. Some speakers felt that the states could organize and discipline the militia, but none held that any state could keep its militia well armed and all agreed to the need for federal guidance. As Luther Martin, a member of the Philadelphia convention who became an Anti-Federalist, told the Maryland assembly later that year, "As to giving such a power [to regulate the militia], there was no objection; but it was thought by some, that this power ought to be given with certain restrictions." Most particularly, Martin had hoped for a limitation on the president's power to order a militia beyond its home state. The majority of the convention brushed aside this latter fear and agreed with James Madison that the whole purpose of federal regulation "is to secure an effectual discipline of the Militia." The states had repeatedly proven their inability to arm, discipline, and deliver their militia when called upon. "The States neglect their militia now," Madison went on, "and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety... The Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution."

Madison had his way, as article I, section 8 of the Constitution granted Congress the authority to call "forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Some modern observers argue that the framers perceived the militia as a check on the governmental power; yet the Constitution accomplishes the exact opposite, making the militia a potential tool of the central government for the repression of any challenge to federal authority. Toward that end, the Constitution made Congress responsible for "organizing, arming, and disciplining the Militia."

As early as 1787 a counterfactual faith in the militia had become a core American belief. More difficult to determine is the relationship between the notion of the militia as a prop of the state and the ownership of firearms. The question is significant, as so many modern observers hold that there was an exact correlation between the individual ownership of firearms and the militia, a relationship that informed the Second Amendment. A careful reading of the historical context of that amendment - the point of this chapter - indicates that the state and federal governments continued the British legal tradition of controlling the supply of and access to firearms.

As previously discussed, the Colonial governments had followed the British precedent in maintaining authority over firearms. Guns were used and owned at sufferance, the state reserving the right to limit, regulate, or impress those arms at its discretion. Under common law this "reserved right of the sovereign" differed from eminent domain. It lacked a requirement for just compensation, since firearms were always seen as in service of the monarch, and it did not require a special act of Parliament. The American Revolution did not change that English heritage, as the loyalists discovered when their firearms were confiscated. State legislatures needed no further argument than public safety, or in constitutional terms, the state's police powers, to justify gun regulation. In this regard they adhered to the English common law heritage and the practice of every European nation. As Edmund Burke held, the state's primary justification is, after all, public safety, and therefore the legislature has a legitimate interest in passing acts to secure that end. These measures aroused amazingly little debate - other than accusations that they were not stringent enough or rigorously enforced.

And, later, after reminding us that it this point in history even privately owned guns were seen as state property, for only public use, Bellesiles writes

Even the most seemingly individualistic renderings of gun rights must be matched against the actions of those responsible for the these statements [in state constitutions - CB]. For instance the 1776 Pennsylvania Constitution declared that "The people have a right to bear arms for the defense [of] themselves and the State; and as standing armies in time of peace are dangerous to liberty, they ought not be kept up. And the military shall be under strict subordination to, and governed by the civil power." Again, it is the state's authority that stands out in this declaration, and the state of Pennsylvania did not hesitate to exercise that authority, disarming loyalists and others who refused to take an oath of allegiance to their government. Gun ownership in Pennsylvania, as in every other state, was premised on the notion that the individual would use that weapon in the state's defense when called to do so; to make the point completely clear, the state required an oath to that effect. The Test Act called for a disarming of those who would not take the oath of allegiance. As Don Higginbotham pointed out, "In all the discussions and debates from the Revolution to the eve of the Civil War, there is precious little evidence that advocates of local control of the militia showed an equal or even secondary concern for gun ownership as a personal right."

The Constitution's treatment of the militia was in keeping with various state constitutions that aimed to craft a workable militia structure.

After discussing the conflict between the Anti-Federalists - that is, those who opposed a strong central government - and the Federalists over local control of militias, and after pointed out many logical flaws in the Anti-Federalist arguments (which look remarkably like the arguments made by the paranoid gun nuts of today, like my neighbor, whose pick-up truck has a bumper sticker which reads: Sure you can have my gun... BULLETS FIRST!), Bellesiles writes

Though the Anti-Federalists' arguments lacked cogency, James Madison had promised during the ratification process to consider amendments to the Constitution. Madison kept his word. He even turned his attention to the proposals that addressed the structure of the militia. Among the changes recommended were limitations on the number of militia under federal control, their training, and the duration of martial law, the use of militia beyond state's borders, and the degree of state control over the militia. None became part of the Second Amendment, as Madison preferred simplicity and clarity in all of the amendments he put before Congress.

While considering the first amendments that would become the Bill of Rights, Madison rejected all changes to the Constitution that would weaken the federal government, including control over the militia. As he rhetorically asked, "For whose benefit is the militia organized, armed and disciplined? for the benefit of the United States." The result was a single sentence with a clarifying preamble: "A well regulated Militia, being necessary to the security of a free State, the right of the people to bear arms , shall not be infringed."

Madison stated his own understanding of the Second Amendment when he presented it to the House of Representatives. "In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker." The people need not fear that national government, which had few means by which it could exert its authority; the real danger lay closer to home, in a tyrannical majority lacking checks on its democratic power. "I confess," Madison continued, "that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abused of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely that which possesses the highest perogative of power: But this [is] not found in either the executive of legislative departments of government, but in the body of people, operating by the majority against the minority." For Madison, it was an unrestrained citizenry that was the most to be feared, and the Bill of Rights, he thought, should protect the minority against the majority's transgressions.

The Second Amendment's purpose is fairly indicated by the ensuing debate and legislation. The House debate focused on two issues: the "use of the militia" in preventing "the establishment of a standing army," and the wisdom of allowing religious exemptions for service in the militia. The legislation that resulted uniformly sought to regulate the militia, starting with the first national militia act of 1792, while legislatures in every state further revealed their intentions in the limitations they imposed on gun ownership, whether in denying that right to blacks, Catholics, Indians, or foreign born.

In other words, the Second Amendment, in its historical context, was not interpreted as giving a universal right to individuals to own private arms. Rather, it concerned the formation of militias, which were to be armed by the federal government with federally owned arms, and which were to be regulated by the federal government. Earlier in his book Bellesiles provides some statistics concerning the state of arms held by each militia, which were, in fact, pitiful. A militia in which half of its men had usable firearms would have been considered a relatively well-armed militia. These men did not bring their own guns to the militia, even though most states offered strong financial enticements to do that, indicating along with contemporary records that, again, very few men in the initial days of our young nation owned any sort of firearm, much less a usable one.

Some form of gun control, far from being prohibited by the Constitution, is actually assumed by the framers of the Constitution.


Brian Cubbage said...

Bellesiles' book looks like an essential contribution to the ongoing debate over guns and gun control. If he manages to substantiate the claims he makes in the brief excerpts you quote, he has really done the nation a service (assuming, of course, that the NRA and pro-NRA politicians are willing to grant him a shred of a hearing).

I do have one remark, though, and it has to do with this notion of "original intent." The part of Bellesiles' overall strategy that you discuss here appears to be that of showing that the NRA's rhetoric of "original intent" behind their understanding of the 2nd Amendment is empty. A better understanding of the original intent behind the 2nd Amendment would imply greater government control over firearms, not lesser. But what if we reject the notion that the "original intent" of the framers of the Constitution is supposed to enjoy unrivalled pride of place in Constitutional interpretation? In general, that's a rejection I endorse. I think that the framers' original intent counts for something, but it's just where Constitutional interpretation should start, not where it should end.

So if I'm pro-gun and reading Bellesiles' book, I might respond like this: "OK, so I can't justify my strong anti-gun-control stance by appealing to the Founders' intent anymore. But why couldn't I just say that my anti-gun-control interpretation of the 2nd Amendment is still the best interpretation of it, all things considered?"

JayWoodhamTheMan said...

You might want to do some googling on Bellesiles. He has been very credibly accused of playing fast and loose on the data and had an award rescinded because of the resultant hulaballoo.

If I had more time at the moment I'd supply links and whatnot, but I gotta run. Look into it though.