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The right to bear arms, the right to regulate guns, both guaranteed by the second amendment – a guarantee of conflict

The right to bear arms, the right to regulate guns, both guaranteed by the second amendment – a guarantee of conflict post image

British muskets intended for militia use, at the armory in Colonial Williamsburg. For more images from Colonial Williamsburg, click here

The reason the debate over gun control is all screwed up, is because if you look at the issue historically, both sides are right. The second amendment to the U.S. Constitution gives citizen the right to bear arms, especially in the case of forming militias, to both protect and if necessary, hold the government accountable. But it also gives congress the right to regulate guns, however it sees fit short of an outright ban.

In the earliest days of the colonies, guns were a rarity. The idea that our earliest settlers fed themselves and protected themselves with guns is a myth. In reality, most of the earliest settlers were farmers, and their diet consisted mainly of that which they could grow. Meat came from livestock, and when it was wild game, it was usually trapped rather than hunted. The reason is simple economics, both of time and money. It takes time to stalk and shoot game, whereas as trapping was a smaller investment in time. Also, gunpowder cost money, which was scarce in the colonies.

From time to time, England would insist that the colonists form militias, and the problem is well noted that very few owned a serviceable gun, let alone one which could be used in battle. Guns were expensive, there were few people engaged in the trade in the colonies, and those that did were mainly assembling them from parts imported from Europe. Hunting was the domain of the wealthy, so the cost of a gun could eat up a large portion of a family’s  yearly income.

Crime wasn’t much of an issue. The crime rate was low, even in England, and homicides were usually committed with clubs or knives. The dangers from Native Americans is pretty overblown – and in fact, during colonial times they could often be counted on as trading partners, and occasionally allies.

The French and Indian War changed things somewhat, as England exported large numbers of weapons to the colonies so that they might share the burden of defending themselves. But usually, these weapons were stored in armories, and were technically the possession of the crown, not individuals.

How well were the citizens of Boston armed in 1775? There were 1,676 houses, 2,069 families and just over 7,000 white males. Those white males possessed 1,778 muskets, 973 bayonets, 634 pistols, and 38 blunderbusses. Since there were almost a thousand bayonets, one might reasonably assume that well over half of the muskets were passed out by the Crown, and not privately purchased. So it should be no surprise that in rural areas, gun ownership was even lower.

Additionally, that era’s weapons of mass destruction – cannons and powder, was stored by and under the control of the militia. You might also toss in that anyone signing up for the militia had to register their weapon with the militia’s leaders, a practice which continued after we became a country.

The colonists put those weapons to good use during the revolution, and we threw off the bonds of Great Britain and were free to rule ourselves. The constitution was adapted, and on December 15, 1791, the Bill of Rights was ratified, which contains the second amendment, that put in writing our right to bear arms.

Colonial Era Weapons. Detail of the Hammer of A Colonial Era Musket. Colonial Williamsburg, WIlliamsburg, Virginia

Early muskets were intended to fire a single shot, which wasn’t particularly useful in defending yourself against more than one armed attacker. The accuracy of the weapon was nothing to write home about either

However, that didn’t mean we were free to own any weapon, for any purpose. No specific arms were included or excluded, and in fact, the term to bear arms technically meant the right to own and wear a sword, in a military context. There was no talk of private ownership of guns for self-defense or hunting, because there were very few private arms, very little hunting done with them, and guns weren’t a practical method of self-defense anyway, as you only got one shot before having to reload. And it’s worth mentioning that most civilians were extremely poor shots.

One of the debates was over whether we should have a standing army. Those in favor of stronger state governments thought not, and wanted a strong militia to defend the homeland from outside invaders, or more pressing, internal rebellions, such as Shay’s Rebellion of 1786-87. Most put little stock in the militia being able to defend ourselves from an armed invasion, as the militias proved to be of dodgy value in the revolution. Even fewer believed it was a good idea for the militias to protect our freedoms from an encroaching tyrannical government here, but it must be said that there was a minority who believed this to be one of the prime reasons for the second amendment.

The second amendment went through several changes:

  1. The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
  2. A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
  3. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
  4. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
  5. A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
  6. A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

And finally, the bill as ratified states that “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.”

The only contentious point was that in which participation in the militia was required, and whether or not if you objected on conscientious grounds, you could have someone serve in your stead.

Courthouse and militia training grounds, Colonial Williamsburg, Virginia

The courthouse and militia training grounds, Colonial Williamsburg, Virginia

So in short, all parties got what they wanted – an armed militia to defend itself against outside agents, internal rebellion and to keep the government in check. But that power was diluted by the federal government’s right to regulate the militia, up to the point of banning the taking up of arms entirely. Which is really in the spirit of the constitution. Regulations can be imposed as long as our representatives have the will of the people behind them. As the representatives of the people, it’s the job of congress to reflect their will, within the framework of the constitution.

The selection of officers was the right of the states, and that was about all that was given to state’s rights. The regulation of the militia was left to congress, who could allow the militias to be quite powerful, or allow them to be weak and rely on a standing army for defense instead. Which eventually became the norm. However, the first congressional act regarding the regulation of militias was passed in 1792, requiring:

“Each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…[and] 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, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.”

Availability of guns was still problematic however, and compliance varied from 10% to 65%. So training was still usually done with pikes, rather than muskets, a practice still in common in the early days of the Civil War, some 80 years later. It’s also important to note that since all white males of age were required to serve in the militia, and the militia kept not only a roll of the citizens, but also what weapons they possessed, the federal government had a somewhat accurate – for the time at least – gun registration system. There are also numerous incidents where private arms were confiscated by the either the state or federal government.

So for those who constantly harp that we need to go back to the original intent of the framers, they certainly intended for Congress, the federal government and state governments to have the right to regulate weapons of all sort, not just guns. The true intent of the militia was shown shortly after ratifying the second amendment, when it was called up and led by George Washington in putting a stop to the Whiskey Rebellion. Even then, out of 13,000 militia members, about three quarters lacked adequate weapons.

The problem wasn’t quickly solved, as poor arming and performance of the militia in the War of 1812 led to several losses, including that which resulted in the burning of the White House and capture of Washington D.C.

Things changed very little in the years leading to the Civil War, when raising vast armies required large numbers of weapons, and the gun industry finally took off. Following the war, many soldiers returned home with their weapons, including black soldiers. In the south, this was considered problematic, and many organizations formed, including the KKK with at least one of their reasons for existence being to remove these weapons from blacks.

The federal government responded with laws assuring freed blacks to own weapons, and in the process, cemented our right to possess guns, though once again, recognizing the fact that the right could still be regulated. It wasn’t an entirely new concept, having first been decided under President Andrew Jackson. The nation’s first right to carry law was passed as well, though this applied specifically in the contested case to a citizen’s right to carry a sword.

Oddly enough, the first real attempts to clamp down on gun owner’s right again involved blacks, this time in the late 1960s. The leaders of the Black Panther movement encouraged blacks to not only arm themselves, but to carry those weapons publicly, as a show of force, and that they would if necessary defend their rights with arms. Ironically, it was the NRA and the Republicans which struck back. Ronald Reagan, then governor of California stated that “no reason why on the street today a citizen should be carrying loaded weapons.” He continued that he didn’t “know of any sportsman who leaves his home with a gun to go out into the field to hunt or for target shooting who carries that gun loaded.” A federal report issued during discussions of the Mulford Act, a California law signed by Reagan to stem the tide of black gun ownership stated that “the firm conclusion that effective firearms controls are an essential contribution to domestic peace and tranquility.”

Where was the N.R.A. during this time? The National Rifleman’s Association was formed during the Civil War to rectify the horrid shooting skills of union soldiers, who typically fired a thousand rounds for every confederate soldier hit. That mission stayed the same for decades, though when issues of gun control came up, the N.R.A. usually sided with those wishing to regulate, at times even leading the effort. The National FIrearms Act of 1934 was designed to make illegal specific types of weapons, including those which fired a lot of bullets fast, and high powered weapons such as sawed off shotguns which were easily concealed. They also supported the Mulford Act, along with a national law passed shortly afterwards which was designed to stem violence in the streets.

In 1976, a coup in the organization changed their focus from reasonable gun laws, to no gun laws. In a swift turn of events, every gun law which the N.R.A. had supported, in fact many of those which they had pushed, they now opposed. Ronald Reagan, no longer facing an armed uprising of blacks as governor of California, and now president of the United States, recognizing the political importance of the N.R.A, changed his tune as well. From that point on, the N.R.A. has been a conservative movement, involved mainly in supporting without question, the right to bear any type of arms a person sees fit. While repeatedly calling for a central F.B.I. database of the mentally ill – quite likely a violation of first amendment rights, they have fought background checks for firearm purchases, in order to protect the second amendment.

In 2008, a conservative Supreme Court in District of Columbia v. Heller, affirmed the individual’s right to own firearms to protect themselves and their home, solidifying a right which the original framers of the constitution never intended. It’s hard to see how conservatives who want a literal interpretation of the constitution can see this as a victory.

Once again, race seems to have a hand in the spread of guns in America. Since the election of Barack Obama in 2008, there as been a steady increase in gun sales. In 2007, the FBI had performed 11 million background checks. By the end of 2012, the number is over 16.8 million, which means more than five million guns on the street since the election of Obama as president. Actually the number is far higher than that, as many people purchase more than one gun at a time, which only requires a single background check. And many weapons sales take place with no background checks. With the renewed focus on gun control laws, it can also be presumed that sales will once more spike.

So in the end, who wins? That’s where the genius of the framers of the constitution lies. There is no doubt that they intended congress to have the power to regulate guns, but not the power to completely abolish gun ownership. As elected representatives of the people, they have to bend to the will of the people. If the people demand and support gun legislation, congress can pass meaningful laws. But if they don’t have the support of the people, they are voted out of office, and any laws passed can be overturned.

The battle over gun control is fought not in congress, or in the office of the president, but among the people. Regardless of the power of the N.R.A., or any gun control lobbyists, the will of the people decide which laws ultimately apply in the ever changing world of the second amendment.

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  • Jeff May 3, 2017, 3:14 am

    There is so many flaws in your argument. For one, the constitution doesnt give me my rights, it protects them from the government which gets their right from the constitution; aka, the peoples consent to be govern.

    The lack of arms wasn’t because they didnt need them for hunting. You are correct about the increase for the French Indian war but, England’s economy was a Mercantile system. Material was sent from the colonies to the mainland for manufactoring. Simply, they were not allowed to produce in the colony. Gunsmiths were rare and were usually tied into blacksmithing. The increase of arms was to arm the militia for colonials to fight in the French and Indian War.
    The militia is the people. The people is the state. Madison is clear in his federalist papers to distinquish the two. Americans have a fear of a standing army dating back to the French and Indian war. See admendnent 3. The founders wanted the people to be a standing army to be called in defense of the union. This was done for every war until war world 1 and finally quashed in 1973.
    Congress does have the power to make law within the comfounds of the constitution, it’s amendments, and the interruptation by the courts. Shall not be infringed and The right of the people is a warning. DO NOT MAKE LAW AGAINST THIS.

    • turnicate May 4, 2017, 12:47 pm

      I don’t really have a problem with most of what you’re saying. In regards to Madison, correct, that was his opinion. There were many opinions which had to be balanced to find consensus. That’s the American experiment, balancing opinions. It’s purposefully vague in the constitution to allow for regulation, as the people see fit. Our leaders are only able to pass laws with the will of the people, otherwise those laws are by nature, short lived. The will of the people currently call for more action on gun control, but that will isn’t strong enough to override our representative system. To me, that’s the brilliance of the American system, our representative government allows a minority in various aspects – here the pro gun lobby – to leverage the power over their representatives and senators, to override change requested by the majority of the country. I have the obvious problem with your argument – that the militia is the people. The people are cannon fodder. The well regulated part of that clause is the government. Which is why when any form of militia movement has taken place in this country without governmental oversight, from the very beginning even when these arguments were all fresh in people’s minds, they were quickly and usually violently squashed. It’s true that the founders were against a standing army, and I agree with that sentiment. It’s practicality now is dubious, it was an idealistic idea after all, but we’re a country built on ideals. Unfortunately we’ve forgotten that, willing to sell ourselves for personal gain, temporary profit and the good of the individual versus the whole. Woe be to us.

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