by Glenn Beck
Anyone who claims that weapons like semi-automatics are so modern and unique that the Second Amendment does not apply to them would also have to believe that the First Amendment protects only writing done with quill pens on parchment paper, since those were the norm back then. How could we expect the Founders to have ever imagined the world we live in today?
We couldn’t—but there is a good reason why the Second Amendment was not written to say “the right of the people to keep and bear muskets, flintlock pistols, and swords”—the types of weapons that were common in 1791. The Founders, far from being the idiots the media paints them to be, knew that technology would evolve. That’s why they wrote the amendment to protect “arms” as a class and it’s why the Constitution as a whole defines a relationship between individuals and the government that is applied across time—no matter what technology eventually brings us.
Let’s go back to the First Amendment to illustrate what might happen if we were to take the Bloomberg/Chopra/Schultz view. At the time this amendment was written, a skilled printer could produce 250 sheets in two hours. Today, a modern newspaper printing press can produce 70,000 copies of an entire newspaper in an hour. And, with digital publishing, a newspaper article can be read globally within minutes after it is written.
One consequence of this technological evolution is that an irresponsible media can cause far more harm today than it could in 1791. For example, in 2005, Newsweek published a story claiming that American personnel at Guantánamo Bay had desecrated Korans belonging to prisoners there. The magazine eventually retracted the story, but it had already spread worldwide, setting off riots in six countries and resulting in the deaths of at least seventeen people.
Had Newsweek been using eighteenth-century printing presses, the false story would have been read by several thousand people confined to a small geographic area. It would have been months—if ever—before the Newsweek issue with the false story was read by anyone in Pakistan or Afghanistan.
This is the same basis upon which the Bloomberg/Chopra/Schultzes of the world argue that we should ban innovations in the firearm industry, like semi-automatic rifles and large-capacity magazines. Look at the damage they can inflict! these people argue. But that point of view is held only by people who have no respect for the Second Amendment and its key role in preserving freedom. After all, if you believe in the Second Amendment as strongly as you believe in the First, then these kind of innovations aren’t dangerous—they’re necessary. A mass printing press or a racist Internet blog in the hands of a madman can inflict serious harm on society; but banning either of those things inflicts much more.
Those who believe that freedom of the press is a basic tenet of a free society look at things differently. Instead of opposing any change that makes the press more “lethal,” they embrace it. More speech, not less. That is common sense to most progressives—yet they can’t seem to bring themselves to apply that same standard to the very next amendment.
Aside from theoretical debates about the application of freedoms across time, the assumption about what our Founders knew about guns at that time is totally wrong. While weapons that could fire multiple shots without reloading were crude, they were not unheard-of and it would not take someone of the intelligence of James Madison to realize that they were the future. As professors Clayton Cramer and Joseph Olson pointed out in their paper “Pistols, Crime, and Public Safety in Early America,” “Repeating, magazine-fed firearms date back to at least the 1600s; concealable ‘pepperbox’ handguns firing five to seven shots without reloading were in use by the end of the eighteenth century.”
There was still plenty of room for improvement in multi-shot guns, and those improvements were eagerly anticipated. As Cramer and Olson wrote, “In 1791, it is clear that the goal of multi-shot firearms was on the mind of gunsmiths, inventors, and shooters . . . . Guns were in hand and getting better with every generation. Inventors knew where they wanted to be . . . . ”
It was only a few years after the Bill of Rights was ratified that a big change came to American firearms. In 1798, Eli Whitney became the first American industrialist to secure a government contract for mass production of firearms (ten thousand units) using interchangeable parts. Suddenly, gun making was no longer a one-at-a-time business of craft production.
By the early nineteenth century, interchangeable parts were used routinely and Whitney’s “American system of Manufacture” was soon being copied around the globe. The United States, whose main exports up to that point had been crops and other raw materials, entered the industrial revolution with guns blazing—literally. Firearms quickly became America’s first mass-production export.
The nineteenth century saw enormous improvements in firearms technology—much faster loading, more reliable ignition, more and better multi-shot firearms. Before the twentieth century dawned, semi-automatics were well developed and ammunition had taken the modern form that we still see today.
As far as we can tell from the historical record, nobody ever asserted that these improvements in firearms technology somehow meant that the Second Amendment would no longer apply. And that’s because nobody was dumb enough to believe that to be true.
EVEN IF THAT’S TRUE, EVERYONE AGREED THAT THE SECOND AMENDMENT WAS ONLY ABOUT MILITIAS.
“For a hundred years, the Constitution was interpreted to mean that state militias, essentially state police, had a right to bear arms, because that’s what the first half of [the] Second Amendment says. But, as of 2008, as a result of years of lobbying and years of Republican appointees to the court, in 2008, the Supreme Court said individuals have a right to bear arms under the Second Amendment.”
—JEFFREY TOOBIN, December 18, 2012
If constitutional law were a game of poker, Jeffrey Toobin would be a world champion. He is able to easily bluff when his hand is terrible, and he can do it with complete seriousness and conviction. He’s also sly. If the game isn’t going in his direction, he’ll look for some loophole he can use to change the rules.
I have nothing against Toobin personally, but I do have something against revisionist history. You’ll notice, for example, that Toobin specifically used the phrase “For a hundred years” at the start of that quote, meaning that he’s talking about the time from 1908 through 2007. But the Second Amendment was adopted in 1791. What happened to those 117 years from 1791 through 1907? Should we just pretend they don’t exist? Toobin doesn’t say.
No wonder. From the ratification of the Second Amendment through the end of the nineteenth century, nearly everyone—American courts, legal scholars, and the public—understood that the Second Amendment protects an individual right to keep and bear arms. The concept of a “a well-regulated Militia” was very important, but it was understood that a militia could exist only if the people from whom it would be drawn possessed their own arms and had plenty of opportunity to use and practice with them.
But let’s put all of that aside for a moment and play by Toobin’s rules. We’ll assume that the first 117 years after 1791 don’t count and we’ll look only at the century before the landmark 2008 Heller decision.
Toobin believes that the Second Amendment protects a right belonging to state governments rather than to individual citizens. This theory was popular for part of the twentieth century, especially among uninformed talking heads and those with such a white-hot hatred for gun ownership that they could not fathom the Framers’ wanting individuals to own arms. It was not, however, very popular with the Supreme Court.
Let’s start by taking a closer look at Heller. The five-justice majority (led by Justice Scalia) followed what is called the “standard model” of the Second Amendment—essentially that it protects the right of law-abiding persons to have firearms for legitimate purposes, especially for self-defense.
The four dissenting justices (led by Justice John Paul Stevens) instead utilized what is called the “narrow individual right” theory, which says that the Second Amendment protects an individual right, but
only in connection with service in a well-regulated militia. The Heller dissenters did not clarify the extent of that right, except to say that they believe it does not include owning a handgun for personal self-defense.
Justice Stephen Breyer wrote a dissent that was joined by the three other dissenting justices: “[B]ased on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1) The Amendment protects an ‘individual’ right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.”
In other words, all nine justices, including those who were not, as Toobin put it, “Republican appointees,” agreed that the Second Amendment protects some sort of individual right. Yet, according to Toobin, this was apparently the first time in the last century that anyone had interpreted it that way. That just doesn’t add up. So let’s take a look at the history and try to find the truth.
First, a decision in Toobin’s favor—though it was just outside of his hundred-year window. In Salina v. Blaksley in 1905, the Kansas Supreme Court ruled that the right to arms in the Kansas Bill of Rights meant only that the state militia, in its official capacity and while in actual service, could not be disarmed. The court also said that the Second Amendment meant the same thing. The problem is that no other court adhered to the Salina approach until 1935, when federal district judge Halsted Ritter (who was later removed from office) wrote that the Second Amendment “refers to the militia, a protective force of government; to the collective body and not individual rights.”
The U.S. Supreme Court’s one major Second Amendment case of the twentieth century was United States v. Miller in 1939. The Court essentially ruled that only weapons useful to the militia are protected by the Second Amendment, but the Court did not say that individuals have a constitutional right to possess those protected weapons only while serving in the militia.
Confused yet? It gets worse before it gets better.
After Miller, some lower courts did come close to adopting Toobin’s “states’ right” theory. In 1942, for example, the federal Third Circuit Court of Appeals decided that the Second Amendment “was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.” This seems to imply that the right to arms is truly collective, since this decision implied that states could essentially supersede federal law by creating their own militia-based firearm laws. That would mean that Texas could declare all able-bodied men to be part of their militia and arm them with machine guns so that they would be ready to fight the feds. The Third Circuit apparently did not recognize the implication of its theory, and neither does Toobin.
The federal Gun Control Act of 1968 greatly expanded federal gun laws. As a result, defendants (usually convicted felons) who had been arrested for gun possession began to be marched in front of federal courts. Since the guilt of these defendants was not usually in question, attorneys sometimes resorted to the argument that the gun ban itself violated the felons’ Second Amendment rights. The lower courts rejected these arguments, sometimes declaring that the Second Amendment protects a state’s right, and sometimes that it protects a “collective” right.
The New Jersey Supreme Court was the first to use the actual term collective right, when, in 1968, it upheld the state’s new gun licensing statute in Burton v. Sills. The New Jersey court maintained that the Second Amendment “was not framed with individual rights in mind. Thus it refers to the collective right ‘of the people’ to keep and bear arms in connection with ‘a well-regulated militia.’ ”
With the legal history of the Founding era and the nineteenth century having been forgotten, the opinions of judges like Halsted Ritter were presented as mainstream consensus, rather than as the outliers they really were. Although regular Americans continued to believe that the Constitution guaranteed their individual right to own firearms, controllists were sensing blood in the water and began to push the collective theory hard. Inside the self-important, elitist Manhattan cocktail party circuit, the term collective right was the new go-to attack on anyone who dared raise a hand in support of their natural and constitutional rights.
But not in the Supreme Court. In the 1990 case United States v. Verdugo-Urquidez (which actually involved a Fourth Amendment question) Chief Justice William Rehnquist’s majority opinion clarified that “the people” whose right to arms is protected by the Second Amendment are “persons.” Not—as Toobin claims—state governments who want to have state militias.
Other Supreme Court opinions in the time between Miller (1939) and Heller (2008) also recognized an individual right. For example, in Poe v. Ullman (1961), Justice John Harlan’s celebrated dissenting opinion analyzed the individual “liberty” that the Fourteenth Amendment protects from state government infringement. Among the many parts of that “liberty” were “the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.”
Justice Harlan’s language about the Second Amendment was later quoted with approval in several subsequent Supreme Court cases, including Justice Sandra Day O’Connor’s opinion for the Court in Planned Parenthood v. Casey (1992); in both the majority and the dissent in Moore v. East Cleveland (1977); and in Justice Potter Stewart’s concurrence in Roe v. Wade (1973).
In other words, Toobin has history wrong. There were plenty of opinions over the last century—from very reputable people—that the Second Amendment protects an individual right. By the time Heller rolled around, the “collective right” theory was so outdated that only one of the sixty-seven amicus briefs filed in the case (a brief that counted Janet Reno and Eric Holder among its authors) referenced the concept. The justices themselves dismissed the idea out of hand—leaving Toobin alone to revise history so that it fits his own conceptions.
MOST GUNS KEPT IN THE HOME ARE USED FOR SOMETHING OTHER THAN SELF-DEFENSE.
“But there is a more fundamental problem with the idea that guns actually protect the hearth and home. Guns rarely get used that way. In the 1990s, a team headed by Arthur Kellermann of Emory University looked at all injuries involving guns kept in the home in Memphis, Seattle and Galveston, Tex. They found that these weapons were fired far more often in accidents, criminal assaults, homicides or suicide attempts than in self-defense. For every instance in which a gun in the home was shot in self-defense, there were seven criminal assaults or homicides, four accidental shootings, and 11 attempted or successful suicides.”
—NEW YORK TIMES, editorial, February 2, 2013
Totally false.
Unfortunately, this Kellermann study (which, by the way, is twenty years old) has received widespread attention and has probably scared lots of people away from keeping a gun in the home for self-defense.
As with any study that is often cited by people trying to score political points, it’s helpful to take a step back and ask some commonsense questions about the approach. Here is how it worked: After someone was killed in or near their home, Kellermann and his coauthors would go ask their relatives if a gun had been kept in the home. If the relative said yes, researchers then simply assumed—yes, assumed—that it must have been the very same gun that was used in the killing.
In very few cases was the researcher able to actually trace the homicide to the gun kept in the house. Out of the 444 cases they analyzed, there were only eight instances in which “the investigating officer specifically noted that the gun involved had been kept in the home.” (If anything, this research ought to be interpreted as showing that guns kept at home are seldom used against the owners.)
The Kellermann study—which did not look at any other defensive gun uses (for example, incidents where a gun was effective after merely being brandished) except those where someone was shot—also compared the data on homicide victims with a so-called control group of similar individuals living within a mile of the victim. Researchers offered
these folks ten dollars and then asked them whether they had guns and whether they had suffered any homicides. Unsurprisingly, researchers found that there were fewer homicides and fewer guns in the control group than in the other group. There was, in other words, a correlation between gun ownership and homicide.
Kellermann and his coauthors took this to imply that gun ownership causes more homicide. But, remember, the first group had specifically been chosen because a homicide had occurred. These were not randomly selected households. It is very likely that this group of homicide victims faced an increased risk of death compared to other similar people—which may very well be why they chose to have a gun at home in the first place.
Using this same logic, one could easily interview people who’ve been shot while wearing a bulletproof vest and conclude that these vests are very dangerous. Or you could interview people who died after calling 911 and conclude that calling the police often leads to death. These comparisons are idiotic—you are selecting a group of people who are already at risk.
Kellermann and his coauthors are medical doctors. So, for the fun of it, let’s use their incredibly irresponsible method to “prove” that hospitals are dangerous places.
To start, we’ll collect data just as these researchers did. We’ll get a list of all the people who died in a particular county over the period of one year, and then we’ll ask their relatives about whether those people had been admitted to a hospital during the previous year. Next, we’ll find people of similar demographic (age, sex, race, neighborhood, etc.) characteristics who are still alive and we’ll ask them whether they’d been to a hospital over the last year.