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Gun Laws and What the Second Amendment Intended

As school shootings erupt with sickening regularity, Americans once again are debating gun laws. Quickly talk turns to the Second Amendment. But what does it mean? History offers some surprises.

Published: July 5, 2014

Photo: Cour­tesy of Gabriel Campanario/ The Seattle Times

Cross­pos­ted from The Seattle Times.

As school shoot­ings erupt with sick­en­ing regu­lar­ity, Amer­ic­ans once again are debat­ing gun laws. Quickly talk turns to the Second Amend­ment as Wash­ing­ton state considers two gun initi­at­ives in the Nov. 4 ballot.

But what does it mean? History offers some surprises: It turns out in each era, the mean­ing is set not by some pristine consti­tu­tional text, but by the push and pull, the rough and tumble of public debate and polit­ical activ­ism. And gun rights have always coex­is­ted with respons­ib­il­ity.

At 27 words long, the provi­sion is the shortest sentence in the U.S. Consti­tu­tion. It reads: “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.”

Modern read­ers squint at its stray commas and confus­ing word­ing. The framers believed in free­dom to punc­tu­ate.

It turns out that to the framers, the amend­ment prin­cip­ally focused on those “well regu­lated mili­tias.” These mili­tias were not like anything we know now: Every adult man (even­tu­ally, every white man) served through their entire life­time. They were actu­ally required to own a gun, and bring it from home.

Think of the minute­men at Lexing­ton and Concord, who did battle with the Brit­ish army. These squads of citizen soldiers were seen as a bulwark against tyranny. When the Consti­tu­tion was being debated, many Amer­ic­ans feared the new cent­ral govern­ment could crush the 13 state mili­tias. Hence, the Second Amend­ment. It protec­ted an indi­vidual right — to fulfill the public respons­ib­il­ity of mili­tia service.

What about today’s gun-rights debates? Surpris­ingly, there is not a single word about an indi­vidual right to a gun for self-defense in the notes from the Consti­tu­tional Conven­tion; nor with scattered excep­tions in the tran­scripts of the rati­fic­a­tion debates in the states; nor on the floor of the U.S. House of Repres­ent­at­ives as it marked up the Second Amend­ment, where every single speaker talked about the mili­tia. James Madis­on’s original proposal even included a conscien­tious objector clause: “No person reli­giously scru­pu­lous of bear­ing arms shall be compelled to render milit­ary service in person.”

To be clear, there were plenty of guns in the found­ing era. Amer­ic­ans felt they had the right to protect them­selves, espe­cially in the home, a right passed down from England through common law. But there were plenty of gun laws, too. Boston made it illegal to keep a loaded gun in a home, due to safety concerns. Laws governed the loca­tion of guns and gunpowder stor­age. New York, Boston and all cities in Pennsylvania prohib­ited the firing of guns within city limits. States imposed curbs on gun owner­ship. People deemed danger­ous were barred from owning weapons. Pennsylvania disarmed Tory sympath­izers.

That balance contin­ued through­out our history, even in the Wild West. A historic photo of Dodge City, the legendary fron­tier town, shows a sign planted in the middle of its main street: “The Carry­ing of Fire Arms Strictly Prohib­ited.” Few thought the Consti­tu­tion had much to say about it.

Through much of history, this balance evoked little contro­versy. Even the National Rifle Asso­ci­ation embraced it. Today the NRA is known for harsh anti-govern­ment rhet­oric, but it was star­ted to train former Union soldiers in marks­man­ship. In the 1930s, the group test­i­fied for the first federal gun law. In 1968, its Amer­ican Rifle­man magazine told its read­ers the NRA “does not neces­sar­ily approve of everything that goes ‘Bang!’ ”

Of course, over the past three decades, the NRA shif­ted sharply. At the group’s 1977 annual meet­ing, still remembered as the “Revolt at Cincin­nati,” moder­ate lead­ers were voted out and the organ­iz­a­tion was recast as a consti­tu­tional crusade.

Together with even more intense advoc­ates, such as the Bellevue-based Second Amend­ment Found­a­tion, they are quick to decry any gun laws as an assault on a core, sacred consti­tu­tional right. They waged a relent­less consti­tu­tional campaign to change the way we see the amend­ment.

Remark­ably, the first time the Supreme Court ruled that the Second Amend­ment recog­nizes an indi­vidual right to gun owner­ship was in 2008. The decision, rang loudly. But a close read shows that Justice Antonin Scalia and his colleagues make the famil­iar point that gun rights and respons­ib­il­it­ies go together. The court said that, like all consti­tu­tional rights, there could be limits. “Noth­ing in our opin­ion should be taken to cast doubt on long­stand­ing prohib­i­tions on the posses­sion of fire­arms by felons and the mentally ill, or laws forbid­ding the carry­ing of fire­arms in sens­it­ive places such as schools and govern­ment build­ings, or laws impos­ing condi­tions and qual­i­fic­a­tions on the commer­cial sale of arms,” Scalia wrote.

That’s how judges have inter­preted this consti­tu­tional right. Dozens of courts have examined gun laws since 2008. Over­whelm­ingly they have upheld them, despite the claims of gun-rights attor­neys. Yes, there is an indi­vidual right to gun owner­ship — but with rights come respons­ib­il­it­ies. Soci­ety, too, has a right to safety, and there is a compel­ling public interest in laws to keep guns out of the hands of danger­ous people.

To be sure, the final scope of the consti­tu­tional provi­sion has not been determ­ined. The Supreme Court has not spoken again. It is infal­lible because it is final, as Justice Robert Jack­son once wrote, not final because it is infal­lible. But the greatest contro­versy revolves around issues such as the rules for carry­ing a gun outside the home.

So what does the Second Amend­ment really mean? From the debate over the Consti­tu­tion to today’s gun fights, the answer is really up to us, to the people. That answer changes over time. But one thing has remained surpris­ingly constant: Amer­ic­ans cher­ish free­dom, but believe passion­ately that rights demand respons­ib­il­it­ies. It’s hard to think of an area where that insight matters more than when it comes to ensur­ing that lethal weapons do not fall into the wrong hands.