Articles

The incredible history of the 2nd Amendment and America’s gun violence problem | Jill Lepore


One of the more interesting theories about
the nature of gun violence in the United States and the quite high homicide rate in the United
States, both of which distinguish the United States from other similar nations, has to
do with at what moment in time the United States became independent and why the Second
Amendment ends up in the Bill of Rights, which is written by Madison. In the theory it is that most states, that
is nation states, pursued a historical course that led to the state having a monopoly on
violence before the state became fully democratized, that is to say the government essentially
seizes the weapons and declares that people can’t be kind of holding their own weapons
for the sake of wielding kind of satellite forms of armed power against the state and
then societies become democratized. So if you think about the United Kingdom like
you could think about it in those terms. That doesn’t happen in that sequence in the
United States, the United States becomes democratized much earlier. From early in the 17th century British mainland
colonies and island colonies as well elect their own local representatives to their colonial
legislatures, they pass their own laws. There is a spirit of independence in colonial
governments that you don’t see in county governments in England say at the same time historically. And among the important elements of that spirit
for many people by the 1760s is the idea that in so distant set of colonies from a ruling
imperial government, what is dangerous is when people’s ability to express themselves
politically is interfered with by a standing army. So the great bugbear of 18th century mainland
colonists is the standing army, especially in the north. The south doesn’t have as much of a problem
with a standing army and Britain’s Island colonies in the Caribbean don’t have a problem
with the standing armies. A standing army is an army kept by the king
in times of peace and quartered among the people or near the people. And Britain’s Caribbean colonies what they
really, really want is a standing army because that’s a bunch of English colonists who are
vastly outnumbered by their enslaved African workforce and they want to be defended by
the British army so they’re forever indeed asking for a standing army to be in the islands
to defend slave plantation owners against their own slaves who were constantly rebelling. And that is to some degree the same case in
the southern colonies in the mainland. In the north in particular, particularly in
New England, the idea of a standing army is the worst form of political tyranny and this
assumes a new political prominence after 1768 when. In 1765 the Britain Parliament passed a Stamp
Act, which effects all the British colonies, but the place that really rebels is New England. They don’t want to pay these stamp taxes. And a series of protest lead to the repeal
of the Stamp Act, which is then replaced with the Declaratory Act, in which the Parliament
says yeah we’ll repeal the Stamp Act because you really complained, but we declare that
we have the right to tax you. And then there’s a new tax on tea and the
Townsend Act in 1767 and the colonists continue to be rebellious, in Boston in particular. And the king sends two regimens of the British
army to Boston to occupy the city. They get off their ships; they march up the
Longworth; they occupy the city for years. And they’re much despised and it’s conflict
between the people of Boston and the occupying army that leads to the Boston Massacre in
1770. And the rhetoric in patriot newspapers tends
to emphasize the importance then of the people’s right to bear their own arms as a potential
insurrection against the tyranny of a standing army. So of course the American Revolution breaks
out in 1775, when that occupying British army in Boston marches to the countryside, marches
to Lexington and Concord to seize the arsenals kept by colonial men who have kept arms and
ammunition in powder houses in Concord and Lexington and it’s their defense of their
supply of arms that is the spark to the Revolutionary War. So there’s a mythos in New England in particular
about the importance of bearing arms against a tyrannical power that is your own government. So a lot of that finds expression in the founding
documents in the insistence on a right to revolution. Like we’re declaring our independence and
we’re erecting a new government, but if this government ever fails to serve the people
they can topple it and erect another government. This right to revolution is instantiated in
the founding documents. And when the constitution is sent to the states
for ratification in 1787 anti-federalists, among the things that they complain about,
is that there is no Bill of Rights and a lot of people like Alexander Hamilton say well
there shouldn’t be a Bill of Rights because this isn’t a monarchy. In a monarchy the king has all the power and
so the Bill of Rights, the list of rights and the Bill of Rights or the Declaration
of Rights in England’s a list of powers that the king is willing to say you people still
have these rights, but we’ve just formed a government that is constituted by the people
so we already have all the rights. If we make a list we’re actually enumerating
rights and therefore limiting the number of rights that we have. So there’s a big debate, actually one of the
most heated debates of ratification concerns whether there should or should not be a Bill
of Rights in the first place, that it is both unnecessary and dangerous as Hamilton would
say. Madison comes to believe Madison had not thought
it was necessary to have a Bill of Rights; Jefferson thought it was. People have big arguments about this and finally
Madison says you know what, it’s pretty clear the thing is not going to get ratified without
a Bill of Rights so Madison agrees to draft a Bill of Rights. The Bill of Rights goes through many different
drafts. It is severely edited in committee and by
Congress. There’s a much longer initial list. Each of the ratifying conventions sends in
a list of what they want to have be rights. Eventually Madison narrows it down to 12 and
Congress reduces that to ten, of which the second is, as eventually ratified, the Second
Amendment that we have now that concerns the rights of the people to bear arms. But the language of the Second Amendment is
really important because it’s been much parsed over a well regulated militia being necessary,
I don’t even know, the people’s right to bear arms shall not be infringed, there are these
two clauses. And a lot of the tension and interpreting
the Second Amendment comes from which clause dictates the meaning of the sentence itself. So all this prefatory by way of one way to
understand that right is as a right of the people to not be overwhelmed by a standing
army, that if the government decides to have an army kept in peacetime to implement federal
policy the people should be able to have arms so that they could resist that if that were
the only recourse left. If everything else fell apart politically
and the only recourse left was to wage a military insurrection against your own government That is the insurrectionary interpretation
of the Second Amendment, which I would say on the whole political historians do not find
persuasive nor do legal historians. That was the interpretation of the Second
Amendment that was much cherished by the militia movement in the 1990s. If you remember Timothy McVeigh the Oklahoma
City bombing was a big advocate of the insurrectionary interpretation of the Second Amendment. All those guys in the Michigan Militia this
was the way that they cherished and understood the Second Amendment that it gave them the
right to bear arms, to form militias to defend themselves against an over powerful and armed
federal government. There’s not a lot of historical evidence to
support that particular interpretation, but there are a couple of things that are important
to note about the subsequent history that is after the ratification of the Bill of Rights. One is that certainly between the ratification
in 1791 and the first major Supreme Court case concerning the Second Amendment in 1939
people regulate gun ownership all over the country, states, municipalities. Firearms are a very dangerous piece of property,
especially cities, but many states regulate their ownership and use in a variety of ways
from the very beginning. It’s the thing in a lot of Western towns that
you have to check your weapons with the sheriff’s office when you enter a city. There are just signs posted as if the way
you would have to register at a hotel when you come to town or show your passport at
a hotel in order to register, you have to check your gun at the sheriff’s office. There are all kinds of local legislation against
concealed weapons caring, especially, again, in the West, also in cities in the East. There’s a quite extraordinary amount of specific
local and state legislation that regulates gun ownership or the use of firearms, especially
concealed weapons. None of which interferes with people’s ability
to say hunt on your own property, this has to do largely with density population. These things are not struck down as unconstitutional. For one thing the Bill of Rights doesn’t apply
to the states until the 20th century. The Bill of Rights only says what the federal
government can and cannot do until the Bill of Rights is incorporated amendment by amendment,
and that doesn’t even begin until the late 19th century. So the Bill of Rights wouldn’t restrict states
from passing what we would call gun control laws or gun safety regulations would be a
better way to talk about them. There’s just no constitutional debate and
no one brings it to the fore. In the 1930s the federal government for the
first time passes legislation instituting gun safety measures with the Federal Firearms
Act and the National Firearms Act, which are I think 1934 and 1938. And they’re because of the rise of the machine
gun. Think of like the Al Capone like guys with
the machine gun in the violin case kind of shooting people on the street, there is a
lot of pressure on the federal government to consolidate state laws, which have prohibited
fully automatic weapons and required licenses for handguns or required gun safety instruction
or required that guns cannot be concealed and carried into an urban environment or whatever
the various state measures are. So most of those things are kind of consolidated
and formed this new wave of federal legislation. And when those two federal laws aren’t in
fact challenged on Second Amendment grounds, because of course the Second Amendment does
obtain to federal legislation, the case goes to the Supreme Court in 1939 in U.S. v Miller,
which decides unanimously that those laws are perfectly constitutional, the Supreme
Court is declaring that the Second Amendment does not protect the rights of an individual
to carry firearms, what the Supreme Court says in this unanimous ruling in 1939 is the
Second Amendment protects the right of people to form militias or to participate in the
common defense. It really doesn’t have anything to do with,
for instance, hunting. It’s like historian Gary Wills once said,
“One does not bear arms to shoot a rabbit.” Like bearing arms it evokes a military use
for the common defense. Not for insurrection against your own government,
as well as among the people would say is not a thing that any government rationally would
put in its on founding documents, but to participate in defense of the country against a common
enemy. So surprisingly uncontroversial throughout
the 1930s; there’s a tremendous amount of popular support for these restrictions. And they’re not understood to impede people’s
ability to own guns or to hunt or to go do target practice or the many things that sportsman
in particular want to do. And those pieces of legislation in the 1930s
are supported by the National Rifle Association, which had been founded in 1871 as a sportsmen’s
organization at a time when rifle shooting, target shooting become a pretty avid past
time in the United States. And the NRA is supporting gun use instruction
and target shooting competitions and sportsmen’s guides and supports the National and Federal
Firearms Acts in the 1930s. So much of this changes in the 1960s when
Lee Harvey Oswald shoots John F. Kennedy with a gun that he ordered from American Rifleman,
which is the NRA’s magazine. Nevertheless of the gun control act of 1968
passes with the NRA’s support. But in the 1970s the NRA leadership is subject
to a coup by people who want to use the Second Amendment in a new way and to use the rights
discourse of the rights revolutions of the civil rights and women’s rights and gay rights
movement to energize a new political constituency, conservative white men, and to give them a
political battle to fight for as a constitutional right that is threatened by a liberal Supreme
Court. And it’s a big part of our polarization in
the last 40 years of the United States has actually been around arousing the sense of
fear that gun rights, which are some now fundamental right for an individual to bear arms as interpreted
by the NRA, comes to fuel a huge decades-long spasm of polarization in what, from any historical
standard, is a quite controversial and novel interpretation of the amendment.

Leave a Reply

Your email address will not be published. Required fields are marked *