A Short History Lesson on the US Constitution’s Second Amendment
The following is a lengthy post regarding control laws in the US and their history. I would love for it to be shorter to make my point, but the history is long and convoluted. There has been a significant back and forth between those who see the 2nd Amendment as a free pass for toting guns (concealed or openly) anywhere in the US versus those see it as a regulatable right that has had a long history of regulation at the state and federal levels. The history is pretty clear: the 2nd Amendment was created in a specific historic context for a specific reason and regulations have been applied throughout the US since, to manage the right within a context of the safety of the general public. I will try to make this clearer by adding references to some key documents and more entertaining by pointing out interesting historical stories via popular articles at the end. The topic is both fascinating and frustrating to me and I want others to see it as the complex politicized topic that it really is. The Heller and Bruen decisions fly in the face of facts that outline both federal and state laws throughout US history that did regulate gun possession and use.
Prior to the adoption of the US Constitution in 1787, Washington drafted his thoughts on the defense of the soon-to-country. His influence post the War of Independence cannot be overstated. It was so great that he was requested by many colonials to become king of the new country. See the Newburgh Letter available here: https://en.wikipedia.org/wiki/Newburgh_letter#:~:text=On%20May%2022%2C%201782%2C%20the,King%20of%20the%20United%20States.
At the end of his first term, he wished to withdraw from the presidency, but public acclaim and his close associates convinced him to return to office:
At the end of his second term (1798) Washington accepted a commission as chief officer of US Army to plan for a possible conflict with the French through the influence of John Adams. He was asked by a number of his supporters to return to office, there being little doubt he would have a third term. He refused, saying: he had “ardent wishes to pass through the vale of life in retirement, undisturbed in the remnant of the days I have to sojourn here.” As well being unwilling to be “charged . . . with concealed ambition.”
I go to this degree to reference the actual respect with which he was held and the influence he had not only with the average American, but other politicians and the Founding Fathers. When he made his thoughts available to the public, they were both respected and fulfilled to the degree possible.
In 1783, George Washington outlined his reasons for not supporting a standing army in the newly constituted United States. Why is this significant to any discussion of the 2nd Amendment? Our first President was concerned about the use of national armies against the citizens of the US predecessor countries in Europe. He specifically addressed the issue in his document “Sentiments on a Peace Establishment” written in 1783. A Web text version can be found here:
It is a well-reasoned document for the time and reflects his views regarding maintaining the people’s safety from and his perspective on “our peculiar local situation”. Here he was referencing the debt the new country faced from the prior War of Independence and his fears that the US lack of a national Navy left us open to commerce raiders and possible invasion by sea,
“Besides, as soon as we are able to raise funds more than adequate to the discharge of the Debts incurred by the Revolution, it may become a Question worthy of consideration, whether the surplus should not be applied in preparations for building and equipping a Navy, without which, in case of War we could neither protect our Commerce, nor yield that Assistance to each other, which, on such an extent of Sea-Coast, our mutual Safety would require.”
If you wish to understand the entire discussion, it is worth reading the entire document. The 2nd Amendment was established on the following basis:
“. . . that every Citizen who enjoys the protection of a free Government, owes not only a proportion of his property, but even of his personal services to the defence of it, and consequently that the Citizens of America (with a few legal and official exceptions) from 18 to 50 Years of Age should be borne on the Militia Rolls, provided with uniform Arms, and so far accustomed to the use of them, that the Total strength of the Country might be called forth at a Short Notice on any very interesting Emergency, for these purposes they ought to be duly organized into Commands of the same formation; (it is not of very great importance, whether the Regiments are large or small, provided a sameness prevails in the strength and composition of them and I do not know that a better establishment, than that under which the Continental Troops now are, can be adopted. They ought to be regularly Mustered and trained, and to have their Arms and Accoutrements inspected at certain appointed times, not less than once or twice in the course of every [year] but as it is obvious, amongst such a Multitude of People (who may indeed be useful for temporary service) there must be a great number, who from domestic Circumstances, bodily defects, natural awkwardness or disinclination, can never acquire the habits of Soldiers; but on the contrary will injure the appearance of any body of Troops to which they are attached, and as there are a sufficient proportion of able bodied young Men, between the Age of 18 and 25, who, from a natural fondness for Military parade (which passion is almost ever prevalent at that period of life) might easily be enlisted or drafted to form a Corps in every State, capable of resisting any sudden impression which might be attempted by a foreign Enemy, while the remainder of the National forces would have time to Assemble and make preparations for the Field. I would wish therefore, that the former, being considered as a denier resort, reserved for some great occasion, a judicious system might be adopted for forming and placing the latter on the best possible Establishment. And that while the Men of this description shall be viewed as the Van and flower of the American Forces, ever ready for Action and zealous to be employed whenever it may become necessary in the service of their Country; they should meet with such exemptions, privileges or distinctions, as might tend to keep alive a true Military pride, a nice sense of honour, and a patriotic regard for the public. Such sentiments, indeed, ought to be instilled into our Youth, with their earliest years, to be cherished and inculcated as frequently and forcibly as possible.”
The importance of this approach defined the need for a “Militia” Which the previous section outlines clearly. A standing Army represented a source of some apprehension and the debt of the country at the time should be focused on building a strong Navy prior to considering the creation of a national Army. The 2nd amendment created the basis for this approach.
“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.”
To be blunt – the definition of the Militia, its place in public life and how it might be managed and held accountable are covered in some detail. There is no reference in any form to the keeping of arms for personal protection. In fact, the early legal framework of state law had long established laws that specifically limited the carrying of arms in public.
The Duke Center for Firearms Law maintains a repository of historical gun laws at the following site:
Examples include the following from “Revised Statutes of the Commonwealth of Massachusetts.”
“If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.”
Nine other states used the Revised Statutes as Templates for codifying their laws: Wisconsin (1839), Maine (1840), Michigan (1846), Virginia (1848), Minnesota (1851), Oregon (1853), the District of Columbia (1857), Pennsylvania (1860), and West Virginia (1870).
In 1889. Texas law stated:
“Unlawfully Carrying Arms, § 1. Be it enacted by the Legislature of the State of Texas: That Article 318 of the Penal Code shall be and the same is hereby amended so as to hereafter read as follows: Article 318. If any person in this state shall carry on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, slung-shot, sword-cane, spear, or knuckles made of any metal or any hard substance, bowie-knife, or any other knife manufactured or sold for purposes of offence or defense, he shall be punished by fine of not less than twenty-five nor more than two hundred dollars, or by imprisonment in the county jail not less than ten nor more than thirty days, or both by such fine and imprisonment; and during the time of such imprisonment such offender may be put to work upon any public work in the county in which said offense is committed.”
It should be noted that it was not until the 20th century that the idea that possession of firearms outside the context of a militia or “special circumstances’ was considered an individual right.
United States v. Emerson,, 270 F.3d 203 (5th Cir. 2001)
District of Columbia v. Heller, 554 U.S. 570 (2008)
McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010)
It can be argued that the increased politicization of the court since the Nixon Administration is directly responsible for the recent changes in the interpretation of the 2nd Amendment, eliminating the original intent that carrying a weapon by certain individuals was a part of their civic duty as part of their participation in a “well organized militia”.
For example, in 1939, In US vs. Miller 307 U.S. 174, The Supreme Court recognized that: “the Court held that if the weapon did not have “some reasonable relationship to the preservation or efficiency of a well- regulated militia” then the Court could not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
Interestingly, in May 1967 the NRA and the state of California sought stricter gun controls as a direct result of thirty armed Black Panthers organizing a protest on the steps of the California State House. As a result of this, notably with then Governor Ronald Reagan’s support, it started a trend towards California having some of the strictest gun laws in America. A perfect example of the “law of unintended consequences” in the future fight over the 2nd Amendment.
See https://www.history.com/news/black-panthers-gun-control-nra-support-mulford-act and https://en.wikipedia.org/wiki/Mulford_Act.
For more interesting tidbits about the history of gun laws in the US, see: