Last Friday, a 20 year old kid in Newtown CN with a history of mental illness killed his mom with a Bushmaster .223 M4 Carbine. He went to an elementary school he used to attend and before he took his own life he shot and killed 20 kids aged 6 - 7 and 8 adults. The age of the dead shocked America but a mass murder in American happens so often it is no longer shocking. They’ve become all too frequent in recent years and the reasons aren’t simple. Society itself plays some part as things like reality TV has promoted the idea that making a spectacle of yourself is OK. Hollywood rating systems forbids sex but allows ridiculous amounts of violence while video games have scenes that allow a player to simulate killing dozens of people at a time. Money for mental health facilities has decreased over the past 20 years and now many parents struggle to get medication for the kids who need it. Some of these parents play a role as the guns used in the Newtown killing were legally purchased by the mother just not in a gun safe.
The thing I haven’t mentioned because it is the point of this article is the role that guns themselves play in these killings. In this past year, there have been 7 mass murders involving guns. In 2011 – 3. 2010 – 1, 2009 – 4, 2008 – 3, 2007 – 4, 2006 – 3. In the past 7 years, there have been 25 mass murders, an average of 3.57 events per year. In the 23 years from 1983-2005 there were 37 separate mass killing events throughout the United States for an average of 1.48. From the numbers you can see the numbers, although rare in nature, have more than doubled in recent years.
It’s a sad state of affairs but like many have stated no change is going to happen as a result of the 2nd amendment. I’ve been meaning to so some research on the 2nd amendment for a long time and this has forced me to act. The rest of this post is my findings. I’m planning to go back and include hyperlinks at some point but most of the info is at billofrights.org, usconstitution.net and various wiki’s on individuals.
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In 1689, England deposed King James II in the Glorious Revolution and the Parliament turned to the philosopher John Locke to help them create an English Bill of Rights. The impetus for this change was King James II’s belief in the ‘Divine Right of Kings’, meaning that his power was granted by god and could not limited. The English Bill of Rights gave the people unalterable rights and added to the power granted by the Magna Carta. James’ replacement, William of Orange, was required to declare a coronation oath accepting the Bill of Rights before he took the throne. The portion directly associated with guns states:
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law
This reversed King James’ declaration that made it illegal for Protestants to own arms. Religious strife dominated his reign with continual war between his Catholic army and the Parliament’s Protestant one. This part of the declaration made it impossible for a future king to arrest people by taking away their right to defend themselves as allowed by Parliament’s laws. Another part of the English Bill of Rights clarifies the meaning a bit:
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law
After reading these two parts of the English Bill of Rights, I think it is apparent the Parliament was more concerned with limiting the power of the king and not concerned with a permanent right to bear arms. They reserved the right to legislate gun use. As a side note, over time the English slowly took guns away from its people and in 1997 eliminated the ownership of handguns almost entirely.
When the American colonists revolted in 1775, they met the next year to discuss their response to the king’s call for them to surrender. One of the key meetings held that year was in Virginia and the result was the Virginia Declaration of Rights. The Virginia delegates tasked George Mason with writing the original draft and he used the English Bill of Rights as a basis. The final wording of the Virginia Declaration of Rights passed in May 1776 and had the following language:
Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
You can see the English Bill of Rights influence in Mason’s words as he combines the two sections I listed above. His wording is concerned with a well-regulated militia as they felt a standing army was dangerous but it makes no distinction between the militia or the army in the claim that both are subject to civil power.
The Virginia Declaration of Rights and the English Bill of Rights influenced Thomas Jefferson and the final version of the Declaration of Independence in July 1776. Compare the first lines of both documents:
Section 1 of the Virginia Declaration of Rights - That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Preamble to the Declaration of Independence - "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"
After the colonist won their independence, the Articles of Confederation was the method used to govern the United States but many leaders determined it too weak to be effective. During this time, states had most of the power and some took the opportunity to pass their own constitutions. The first was Massachusetts and in their Constitution, they included their own Bill of Rights, written by John Adams. The Section 1 preamble reads very similar to Virginia’s Declaration of Rights:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
The provision on militias and guns reads is similar too:
XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
It seems to me that John Adams and the Massachusetts legislators are clearly stating that military power, including militias for the common defence are beholden to the legislature.
By the mid 1780s the push for a new method of governance grew and in 1787 the Articles Congress called for a meeting to revise the system of government. The result was the United States Constitution written by primarily by James Madison and the negotiations of men that came from many various backgrounds. Virginia was the biggest state at the time and its delegates echoed creating a government using the philosophy of John Locke mentioned above. The ultimate result of the convention was a government consisting of an executive branch, a two-house legislative branch, and a judicial branch. The two house legislative branch (bicameral) was a compromise to satisfy the proponents of rule by popular vote (House) and rule by state (Senate). The members left with the document and headed back to their states to gain ratification.
During the ratification process it became apparent that many states would oppose ratification if the new government did not guarantee their rights. Some states already had this protection internally and they did not want to give up any rights they had gained. Most everyone agreed the new government needed this and Massachusetts started a trend when it ratified with a list of expected amendments that would make up the Bill of Rights.
What were these rights requested by Massachusetts ratification committee? - They dealt most with guaranteeing states rights and had no mention of protection for militia, arms, or guns.
After Massachusetts ratified the Constitution their example of including requests for amendments with their ratification was copied by many other states including the two most important, New York and Virginia.
New York ratification split their provision on militia, arms, and armies into three parts:
· That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
· That the militia should not be subject to martial law, except in time of war, rebellion, or insurrection.
· That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power.
The Virginia ratification was similar to what Mason wrote in the Virginia Declaration of rights 11 years earlier:
17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.
One key change is in the wording. In all prior discussions the language ‘the people have a right to keep and bear arms’ was immediately followed by ‘for the common defense’. They moved the actual word ‘defense’ to the second sentence that spoke about militia. Did they see the two items as intertwined? It seems to me they did but New York definitely was saying something we had not seen from previous founders when they copied Locke and separated the provisions about the militia and the army.
The most interesting thing about the ratification process is how close the vote was in the three largest states, Massachusetts, New York, and Virginia. None of these states seemed happy with the Constitution and the voting in all 3 where within 3% of failure.
Now that the states had ratified the Constitution it was up to the Congress to pass the bill of rights. James Madison took the amendments and submitted them en masse to the Congress. The wording of the proposed 2nd amendment read:
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.
Over the next few weeks the Congress took Madison’s original 20 Amendments and made changes, modifying them and rejecting others until only 12 Amendments were sent to the states for ratification in September 1789.
Many people were against the Bill of Rights altogether. Alexander Hamilton said, “Bills of rights are in their origin, stipulations between kings and their subjects”. He felt that under the new government the people’s vote took the place of the king and therefore needed no protection.
The states passed ten of the amendments, which the Congress officially ratified in December 1791. The wording of the finalized 2nd amendment is as follows:
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.
This time Congress cut many words out of the versions seen earlier. They placed the wording about militia at the front, the word defense removed, and nothing was stated against standing armies.
The government during that time was split in two key factions. The Federalists, wanted a strong central government and were led by George Washington and Alexander Hamilton. The Anti-Federalists (eventually named Republicans) were concerned about rights and led by Thomas Jefferson and James Madison. The Federalist dominated the early government but quickly lost power however they ruled the Congress during the time when the Bill of Rights was discussed.
Note the removal of the provision against standing armies without the consent of civil authorities. All previous iterations of the Bill of Rights included a mention of the right to bear arms with armies. People like Locke and Mason included it in their submissions and it was included in the New York and Virginia constitutional ratifications. The removal of that portion makes sense when you consider Hamilton’s views (which mimicked Washington) which said that a Bill of Rights was unnecessary. There was no way they were going to allow a mention of Congress limiting the army. Washington knew firsthand how crippling that could be to a general.
Without that provision, it makes the 2nd amendment only about guns/militia’s and is less clear than before. It is possible the founders meant that to protect gun use for its citizens from meddling by Congress but why include the portion about the militia? The Congress removed most of the extraneous language from the Bill of Rights and if they meant that then the 2nd amendment could have read, “The right of the people to keep and bear Arms, shall not be infringed.”
When the Bill of Rights was passed was the Supreme Court had no power. The Bill of Rights website reminds us,
” Some of the Framers expected the Supreme Court to take on the role of determining the constitutionality of Congress's laws, but the Constitution did not explicitly assign it to the Court. Marbury v. Madison, the 1803 landmark Supreme Court case, established the power of judicial review.”
When Chief Justice Marshall said the court had the right to determine the constitutionality of laws, Congress and the President’s silence was their tacit agreement. Many felt Marbury vs. Madison was overreach by the judiciary and if the Congress had ignored Marshall there was little he could have done. President Jackson made this point a few decades later when Marshall ruled in favor of the Cherokee Indians with their dealings in Georgia. Jackson’s response was, “John Marshall has made his decision; now let him enforce it!” The power to execute the law of the land lay with the President but one of Thomas Jefferson’s greatest contributions is allowing John Marshall (a man he personally hated) to expand the power of the judiciary which set the standard that all subsequent presidents were forced to follow.
For most of the first hundred years of the United States, the wording in the 2nd amendment made sense. In the Civil War, the United States raised a few self-equipped volunteer regiments though this represented a small minority of overall forces. By World War One, self-supporting militia were no longer a part of the United States Armed Forces. Weapon technology and war training had advanced too much and it would have been irresponsible to allow volunteer forces anymore. State-run National Guard forces replaced the militia who belonged to another era.
By that time the 2nd amendment meant something different than the original wording of a self-defense measure. Throughout the 19th century, Americans had used firearms to tame the country and a self-image of American gun ownership developed. As the 20th century progressed, little limited a citizen’s ability to own a gun. Automatic weapons like the tommy gun made an appearance during the depression but the reality was limited. Things changed after Vietnam. Cheap automatic weapons like the AK-47 made their way around the world as the United States and the Soviet Union fought a cold war. Weapons makers continued to innovate and created compact models with higher calibers and rates of fire. Weapons like the Uzi and the MAC-10 made their way into the private arsenals all over the United States.
This wasn’t an issue for 99% of the law abiding citizens but like most things the 1% can cause huge issues. In the last twenty years, a trend of mass killings followed by suicide has become alarming. As I stated at the beginning, the reason I looked to our past was the shootings that happened last Friday in Newtown CN . Something like that has to make you question the validity of your laws. To blindly support the past without introspection is ignorant.
If you doubt that, look at how many times the founders proposed different versions of the 2nd amendment in the 13 years from 1776 to the ratification of the Constitution in 1789. They weren’t of one mind what the ‘right to bear arms’ meant and changed it to suit their circumstance. We have lived with this wording for 222 years.
The problem is how do you define arms in a rapidly changing society. In the founders day, arms were made primarily of 8 types of weapons – muzzle-loaded muskets, pistols, swords, knives, gunpowder grenades, bows with arrows, spears, and cannon. All of these were purchasable by private citizens (though cannon were prohibitively expensive and more likely to be owned by a town’s militia). The rate of fire and lethality of all of the firearms have increased many times since the founders were alive and the question is – does the passing of time affect the meaning of the word ‘arms’. Today’s equivalent of the cannon is modern artillery or a tank but no one suggests that citizens have a right to own either of these weapons. You could argue that today’s equivalent of a spear is an anti-tank device or a stinger missile yet it is illegal for citizens to own these too. What about today’s grenade equivalents like C4 or nitrate based explosives? Use them without being licensed you will end up in jail. Society has clearly ‘infringed’ on an individual's ability to own any type of arms so I think the question really is – Where is the proper place to draw the line?
That is why I reviewed the history of the 2nd amendment as it is difficult to understand the meaning by looking at the words alone. If we truly want to live by what the founders meant then it is important to understand the context. In reviewing the context I would be surprised if their interpretation was anywhere close to what we see from today’s NRA and conservative think tanks. The founders said it best at the beginning of the Declaration of Independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
They meant for the government they created to secure the country to allow for life, liberty and happiness. The problem with the unlimited liberty to use guns is when it starts to infringe on the life, liberty, and happiness of others. The founder’s genius in including the Bill of Rights and the Amendment process is the reason the Constitution is relevant over 200 years later. The Constitution is a living document and it is the Supreme Court responsibility to look to the founders for guidance and interpret it as society changes.
A good example is the enforced segregation that was prevalence throughout the south after the Civil War. In 1896, the Supreme Court ruled 7-1 in Plessy vs Ferguson that segregation in public facilities was acceptable as long as the facilities were equal (Separate but equal). 58 years later, the Supreme Court overturned this policy in a 9-0 ruling that stated ‘separate facilities are inherently unequal’. Times had changed and the Supreme Court changed with them.
The question today is whether the Congress has the authority to limit the citizens ability to buy certain types of weapons, be forced to go through restrictive waiting periods or get registrations on guns. Does this violate an amendment that was primarily included to protect the country from foreign enemies? I personally don’t think so.
I don’t have anything against guns and gun owners. I’m sure if any of them made it this far they would disagree with my stance on many grounds but I really have no issue with shotguns, handguns, and single shot hunting rifles without clips. My problem is we seem to be ignoring the issue hoping it will go away. The epidemic won’t improve unless we give law enforcement tools to get it under control. After 9-11 we asked Americans to go through many more screenings when travelling. We accepted it because it we prefer to be safe. Gun owners should feel the same way.
I’m sure the NRA’s response to this would be that the 2nd amendment protects them from any changes and they will fight at all costs. Good. You know what the legislature can do? Tax guns. $1000/gun and $10/bullet. There are many ways to fight this battle but we’d prefer to make it easy. Let’s meet halfway.
My hope is the Congress and the Supreme Court wake up and interprets the 2nd amendment in a more reasonable way. I think this quote says it all.
The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will.
The man who said it in 1821 is the same man who gave the Supreme Court its judicial review authority, Chief Justice John Marshall. We should follow his lead and if the Supreme Court lacks the moral courage to do what is right then it is time for the people of the United States to create a new Bill of Rights they can’t ignore.
