Column: You can’t repeal 2nd Amendment’s history
Last week, retired Supreme Court Justice John Paul Stevens wrote an op-ed in the New York Times that advocated a position most liberal pundits and activists have been incrementally working toward for a long time: repealing the Second Amendment. And while many liberal columnists argued that Stevens had only given fodder to gun advocates — because his position is unfeasible right now — not one whose piece I read argued that Stevens was wrong on the merits. Not one claimed that American citizens do, in fact, have an inherent individual right to protect themselves with firearms.
Whether repeal of the Second Amendment is feasible or not, historical revisionism is meant to mangle its meaning into irrelevancy. Stevens claims that his conception of gun rights is “uniformly understood” yet offers no legal precedent to back up the contention. Stevens claims that the Second Amendment’s explicit mention of the right of “the people” does not create an “individual right,” despite the inconvenient fact that other times the term is mentioned, in the Fourth, Ninth and 10th Amendments, the amendments have been found to protect the individual rights of the people.
Now, I’m not a legal scholar, but the idea, as the former justice argues, that the founders wanted no limits on the ability of federal (or even state) government to take weapons from law-abiding citizens conflicts with the historical record. Never once in the founding debate did a lawmaker rise to argue that gun ownership should be limited. Most state constitutions already featured language to protect that right. A number of states demanded that the national constitution include such a provision.
The debate over the Second Amendment centered on a dispute over who should control the militia: the federal or state governments. Everyone understood that a militia consisted of free individuals who would almost always grab their own firearms — the ones they used in their everyday existence — to engage in concerted efforts to protect themselves, their community or their country (sometimes from their own government).
This might surprise some, but the Minutemen did not return their muskets after Lexington.
In the writings and speeches of the American founders, the threat of disarmament was always a casus belli, which makes sense for practical and ideological reasons. None of the natural rights codified in the Constitution — none, not freedom of speech, press or religion, or the ability to vote or demand due process — had a longer or deeper history in English common law and tradition than the right to defend oneself.
Guns were so prevalent, in fact, that some framers noted that a tyrant would never take the nation because the general public out-armed the state. Noah Webster reasoned: “The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any bands of regular troops.” His only mistake was trusting that the whole body of the people would always uphold the Constitution.
Even during the 19th century, not a single case challenged the notion that the Second Amendment is anything but an individual right. Again, it was so self-evident that when it was brought, it was merely a way to juxtapose American liberty with tyranny elsewhere. In 1823, in a letter to John Adams, William H. Sumner noted that if the population of the United States were “like that of Europe, chiefly consisted of an unarmed peasantry,” it would be conquerable. “Here,” he went on, “every house is a castle, and every man a soldier.” Adams, who had argued that self-defense was “the primary canon of the law of nature” when defending British soldiers after the Boston Massacre, concurred that an armed citizenry would not be susceptible to despotism.
When Jacob Howard, the Michigan senator who helped introduce the 14th Amendment to (attempt) to ensure that blacks in the South had protected constitutional rights, he specifically noted “the right to bear arms” as a right to insure. The right to self-defense surely terrified the racists of the South more than the other.
The collective theory is modern invention. Even the photo of a musket and an AR-15 juxtaposed above Stevens’ column to illustrate the antiquatedness of gun rights in the modern age misjudges history. Just as the First Amendment protects modern communication, and just as the Fourth Amendment applies to modern forms of search, the Second Amendment extends to guns that were not in existence at the time of the founding. Unlike contemporary liberal columnists who’d like to revise the Constitution, the founders were well aware that the fleeting emotions of the population could corrode rights.
If you think the Second Amendment is antiquated, that’s fine. Repeal it. The history of the Second Amendment, though, doesn’t change to comport with your contemporary positions.
David Harsanyi is a senior editor at the Federalist.