The Second Amendment

by Michael Waldman

  Another scholar looked at databases containing all surviving books, pamphlets, and newspaper articles from the period. He found 202 uses of the phrase in a military context, eight otherwise. In 2013, the National Archives launched a searchable database of all the writings and papers of six key founders (Washington, Adams, Jefferson, Hamilton, Franklin, and Madison). A search for the phrase “bear arms” produces 153 mentions—again, all in the military context or simply repeating the amendment’s text.

  One possible reason for the muddle is that the amendment itself was a bit of a holdover. The other amendments pointed forward; the Second Amendment, backward. Throughout this period we see a push-and-pull between the worldview of colonists who savored order and duty, and the newly emerging market-focused nation that cherished individual rights. The Second Amendment in some respects is a last vestige of “civic republicanism” in a list of liberties more drawn from the natural rights philosophy articulated by John Locke.

  We cannot truly know what the Framers intended. But one would have to look far to find evidence that their principal concern was the risk that government would enact gun safety laws, or disarm farmers. They may have thought widespread gun ownership obvious or necessary, but thought it equally obvious that laws could protect public safety, too. (The Tenth Amendment, after all, reserves to the states the power they already had, which emphatically included criminal laws.) And yet: yes, they sought above all to protect the militias. But the militias, as they understood it, were drawn from all the people. The militias required an armed citizenry. Again, militia members were expected to own a military gun. It was not just a military draft, claiming all white men from sixteen to sixty, but a requirement to be armed for the good of the community. That was understood, and assumed.

  Like using bleeding for medical care, wearing wigs, and keeping slaves, many practices and common understandings of the Founding Era are hard to fathom, or translate, today.

  FOUR

  Arkansas Toothpicks, Beecher’s Bibles, and the Fourteenth Amendment

  In any case, not long after the passage of the Second Amendment, the militia system it protected began to crumble.

  We have an early clue about what the Framers meant by a “well regulated militia.” A few months after the Second Amendment took effect, Congress passed the Uniform Militia Act of 1792. It followed the first-ever congressional probe of executive branch incompetence. A militia force led by General Arthur St. Clair had attacked Indians in the Ohio Territory, and lost nearly half its men. George Washington convened his cabinet and invented the idea of executive privilege to justify refusal to turn over documents to lawmakers. In the course of the controversy, Congress decided it was time to put some teeth into the militia system.

  The new federal law required “each and every free able-bodied white male citizen” between eighteen and forty-five to enroll in a state militia. More significantly, it required them all to buy a gun.

  Every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise.

  This provision—in effect, a universal draft and a requirement that all free white men buy guns—reflects a profound degree of governmental intrusion in the country’s early days. It reflects, too, the idea that citizens had a duty to participate in the governing of the country.

  The public largely ignored the law. Enlistments were spotty. Fines were levied ($10, over $9,000 in today’s dollars), but imposed seemingly at random. All told, “compulsory military service disintegrated during the early years of the republic.”

  Congress even established a nationwide registry of privately owned guns for militia use, called a “return.” Officers were to catalogue the military-grade guns owned by the militiamen, and report to the central government. (Early American paperwork.) Presidents Washington and Adams essentially ignored the rule. President Jefferson—trying to revive the militia—ordered a “return” to catalogue the military guns adult American militiamen owned. He was disappointed that the bureaucracy’s work was incomplete.

  In 1791, the year before the Militia Act, Alexander Hamilton—now treasury secretary—searched for a source of revenue for the new government. He prodded Congress to enact an excise tax on whiskey. This hit some hard: with the Spanish-controlled Mississippi closed to American shipping, backcountry farmers were busy distilling grain into spirits to ship east. Western Pennsylvania farmers rebelled and took up arms. President Washington decided to make clear this Whiskey Rebellion was not the “well regulated militia” he had in mind. He mobilized fifteen thousand militiamen, with Hamilton at their head, to restore order. Most of the federal militiamen lacked guns of their own, and the national government had to buy them. By the time the federal posse showed up, most of the whiskey rebels had scattered. With a show of federal force, the new government established its authority.

  The new nation even flirted with something more than militias. A few years later, the United States found itself entangled in a “quasi-war” with France. President John Adams reluctantly called for formation of that terrifying institution, a “standing army.” Congress, authorizing it, euphemistically called its ten thousand troops a “Provisional Army.” Hamilton took effective command, the ambitious man on horseback so feared by republican theorists. Adams brokered peace with France before the army could mobilize.

  Soon, though, the militia system began to sputter. In 1812, trade disputes with Britain led to an ill-conceived war. Northeastern states refused even to authorize their militias to defend the coastline. British soldiers landed in Maryland. Seven thousand militiamen stood between them and the capital. The British brushed past. Quickly they burned the White House, now the home of none other than James Madison. Two historians dryly wondered “whether Madison took this occasion to reflect on his famous comment in The Federalist about the invincibility of a nation boasting a militia of 500,000.” Not present that day was Madison’s vice president: yes, Elbridge Gerry, who died a few months later.

  As the country changed, expanded, grew more democratic and more rambunctiously individualist, the duty-bound concept of militia service withered. Fewer people showed up. Popular illustrations of militia musters no longer showed heroic farmers lined up for their patriotic service. Instead, they lampooned tipsy villagers, clad in shoddy clothes, slouching and lounging.

  In the era we call “Jacksonian democracy,” gun violence rose sharply. In the West and South, Americans dueled, drank, brandished weapons, and took ready offense. Andrew Jackson himself fought numerous duels, and killed at least one man who had insulted his wife. States began to pass the first modern-style gun control laws, focusing on easily concealed pistols or knives. (One could not conceal a musket.) In response to these laws, for the first time, some Americans began to argue that the “right to bear arms” protected individual gun ownership. For example, numerous state constitutions included “mirror” provisions of the national charter. Those dating from the Founding period tended to protect “the right to bear arms for defence of themselves and the state.” By the mid-1800s, new state provisions had an individualist cast: “Every citizen has a right to bear arms, in defence of himself and the State.” Even so, courts generally ruled that “the right to keep and bear arms” referred to militias, not an individual right. In 1820, a Kentucky state court overturned a law that barred the carrying of concealed weapons. (The defendant had been accused of hiding a sword in a cane.) Kentucky stood apart. Arkansas’s court ruled that the Second Amendment and similar provisions in state constitutions only protected militias. Two models emerged
: one calling the right a collective one, the other an individual right.

  Over time, the “Arkansas doctrine” limiting the constitutional right to the militia became the standard interpretation. It was pungently expressed by the Supreme Court in another frontier state, Tennessee. A law there prohibited the carrying of a “Bowie knife or an Arkansas toothpick,” weapons that were easily concealed. A man convicted of brandishing a knife claimed a violation of his right to bear arms. In an 1840 ruling, the state’s high court explained that the provision was modeled on the English Bill of Rights and the Second Amendment. “The object, then, for which the right of keeping and bearing arms is secured is the defense of the public,” it explained. A key was the phrase “bear arms,” which was understood to have a military meaning. “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

  FROM DRED SCOTT TO THE NEW BIRTH OF FREEDOM

  Americans view the Constitution and its provisions in the light of our times. Each generation makes its own Second Amendment. In the decades before the Civil War, Americans had more guns than ever before. More of them were angry, too. The war itself raised again the question of the militias that were the heart of the Second Amendment. Armed conflict spread widely the use of guns. It pushed forward simmering issues of racial violence. And in the end, it left the Second Amendment itself largely irrelevant as a factor in America’s emerging society, new constitutional order, and gun culture.

  One spur for war was the U.S. Supreme Court’s notorious 1857 Dred Scott decision, considered the worst in American history. Roger Taney’s opinion overturned the federal law that embodied the Missouri Compromise and Compromise of 1850 between slave and free states. The Court declared that freed slaves could never be citizens, even when they move into a free state. If so, it ruled, they would be entitled to “the privileges and immunities of citizens.” That vague phrase sits in the Constitution, but was never defined. For the first time, the Court articulated what it saw those privileges to be. Taney explained, in a tone of horror:

  It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

  Taney’s opinion was the first time in decades the Court had struck down a congressional enactment. It did so, too, using an approach we would recognize as “originalist.” Taney purported to show that the Founders intended to prevent African Americans from being citizens, even though the Constitution did not say that. Abraham Lincoln’s speech at Cooper Union was an effort to show that Taney’s reading of original intent was wrong. Taney’s purportedly neutral use of the Founders’ views was no such thing. Taney’s originalism was itself the product of intense social pressure building on the issue of slavery. The South relied more on guns, because the South was a society with millions of people in bondage who could revolt at any moment. Many laws in Southern states had disarmed free black men. Slave states were growing increasingly insistent that slavery be protected, and that it expand into new territories. They were responding, in turn, to something new: the abolitionist movement. It, too, now saw guns as part of the answer.

  Throughout the 1850s many foes of slavery had abandoned pacifist ideals, gravitating toward radical action. Abolitionists and the “Slave Power” took up arms rhetorically long before shots were fired. In 1856 Free Soil and pro-slavery forces poured into Kansas, struggling over the soon-to-be-state’s constitution. Guns flooded the territory as well. Reverend Henry Ward Beecher, a flamboyant sermonist, drew thousands of admirers to Plymouth Church in Brooklyn, New York. He caused a sensation when he declared “more moral power in [a Sharps rifle] so far as the slaveholders of Kansas were concerned, than in a hundred Bibles.” Beecher rallied supporters to send crates of guns and Bibles to Kansas. In New Haven, Yale faculty and students excitedly raised funds to ship twenty-seven rifles. Newspapers called the carbines “Beecher’s Bibles.” In Kansas, pro-slavery ruffians stormed the free town of Lawrence, carrying banners declaring “The Superiority of the White Race!” and “Bibles not Rifles!” They burned the Free Soil Hotel.

  • • •

  In 1859, John Brown—carrying arms sent by abolitionists for use in Kansas—raided the U.S. Arsenal at Harpers Ferry, West Virginia. He hoped to ignite a slave rebellion. Brown had even drafted a proposed new U.S. Constitution encouraging all men and women “of sound mind . . . to carry arms openly.” Maryland and Virginia militia units responded first. U.S. Marines, commanded by Colonel Robert E. Lee, quickly joined them. After the combined force captured Brown and killed his men, fear of armed abolitionists intensified through the South. Slave states responded by strengthening their militias. Suddenly the idea of a state-focused military system did not seem so quaint, or so benign.

  When the American Revolution created a new national government, people still felt obliged to pay homage to the ideal of state sovereignty and armed citizenry. The slaughter of the Civil War left little room for such pleasantries.

  After Confederates fired on Fort Sumter in Charleston, South Carolina, President Lincoln called for 75,000 militiamen to enlist for ninety days to quell the rebellion. Northerners assumed war would end quickly. The first Battle of Bull Run in Manassas, Virginia, fractured those illusions. Washington officials and spectators sojourned in the countryside to see the expected triumph. When the South broke the Northern assault, the onlookers barely escaped in a panicked retreat back to the capital. Within a week after the battle, Lincoln signed laws providing for one million men enlisted for three years. The day Fort Sumter fell, the U.S. Army comprised sixteen thousand men. By the next year, it had 700,000. In 1863, Congress authorized a draft with three-year enlistments. Nearly 200,000 soldiers were African American. An army, not militias, would grind to victory.

  In the end, more than two million fought to suppress the insurrection; the South fielded another million. A vast number of men now had experience with firearms. If local gunsmiths and arms smuggled from Europe had provided the firepower for the Revolution, this time a huge and profitable arms industry arose. Once state militias had patrolled the Southern plantations to enforce slavery. Now Northern armies and militias determined to uproot the same system.

  Armed political and racial conflict continued after the war, and set the contours of the next development.

  On April 9, 1865, in a small house in rural Appomattox Court House, Virginia, Confederate States Army General Robert E. Lee shook hands with U.S. Army General Ulysses S. Grant. The men—the one standing tall in perfectly ironed gray, the other donning mud-caked Union blue—were to end the American Civil War. When Lee finally asked Grant to write out the terms of the Confederate States Army’s surrender, he negotiated only that his men, having been without food for days, be given rations and be allowed to keep their horses and mules. The animals belonged to individual citizens in the army and, Lee argued, they would be necessary to farming after the war. It would be the first step to rebuilding their civilian lives. Grant acquiesced, and so began the rebuilding of a nation.

  But havoc did not end at Appomattox. Whole cities—Atlanta, Charleston, Richmond—were destroyed.
Farms lost their entire livestock, which were loaned out to war efforts. Southerners suffered. And white ex-Confederates, humiliated by defeat and disgraced by poverty, were forced to live alongside their former slaves. Hundreds of thousands of African Americans had served in the Union Army, and many now returned home (often armed).

  Southern whites held to the idea of racial domination, by force if necessary. State governments passed Black Codes seeking to restore slavery in all but name. These laws disarmed African Americans but let whites retain their guns. Pitched battles left scores of freedmen dead in Memphis and New Orleans. Reports of the rogue and violent South trickled onto the floor of Congress.

  In Mississippi houses have been burned and negros have been murdered. In Alabama a new code, a slave code in fact, has been attempted to be passed, and gentlemen must have seen that in the Malboro’ district, in South Carolina, the planters have recently held meetings and resolved that the military power ought to be withdrawn and the freedmen compelled to work for their old masters.

  South Carolina’s black citizens sent a petition demanding the right to be armed on equal terms with whites. An army general issued a proclamation suspending the state’s Black Codes, declaring, “The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed; nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons, nor to authorize any person to enter with arms on the premises of another against his consent.”

  Congress tried to impose order. The Freedmen’s Bureau bill sought to strengthen the temporary government agency that provided employment, relocation, and protection for freed slaves. Among its provisions, it guaranteed that “the constitutional right to bear arms” would be secured to all citizens equally, “without respect to race or color.” Andrew Johnson, the garrulous Democrat who became president on Lincoln’s assassination, vetoed it. The Civil Rights Act of 1866 sought formally to establish nondiscrimination and racial equality. It sought to guarantee the “privileges and immunities” of national citizenship, borrowing language used by the Supreme Court in the antebellum Dred Scott decision. Johnson vetoed that, too. Congress overrode both vetoes.