The history of the gun rights war goes back as far as anyone wants to dig. I would not be surprised if someone were to uncover a lost chapter from the book of Genesis describing how Eve and a coalition of mothers from the land of Nod instigated a rule requiring weapons-grade stones to be cleared from fields and workspaces in hopes of preventing crimes of passion such as befell Abel.
Throughout history there are examples of governments and people of power attempting to control the peasants by restricting their access to weapons. The longbow has been both banned and required at various times in English history – depending on whether the king could afford mercenaries or not. The Pope once issued a bull forbidding the possession of crossbows by commoners, because they were using them to pierce the armor of his Holy Knights who were raping their daughters.
Here in the U.S., the history of gun control is integral to the creation of the nation. It was when British troops marched from Boston to seize militia arms in Lexington and Concord that the people drew the line in the sand and the war for independence began in earnest.
For the better part of the following century, the right to arms was clearly understood in the United States. While there were some minor restrictions imposed in some urban areas, these restrictions were more about public education than anything else.
As cities grew and firearms became less common, so did firearms knowledge – to the detriment of public safety. People storing loaded firearms or powder supplies too close to open hearths resulted in several serious fires and prompted regulations governing such storage. But the right to arms was clearly recognized and understood by the federal government and those of the several states. Debate over the Second Amendment revolved not around whether the right existed, but whether such a clearly understood and unquestionable right needed to be reiterated in the Constitution at all.
It wasn’t until the debate over the citizenship of freed blacks began to heat up that the general right to arms became an issue of any significance. The reasons for the two issues to be connected, and the challenges involved in recognizing blacks as citizens, were summed up by Chief Justice Roger Taney in the Supreme Court’s notorious Dred Scott decision of 1856.
In that case, Mr. Scott was a slave who was suing for his freedom based on his owner’s relocating from a slave state to a free state and back to a slaveholding state. According to Scott’s argument, he felt that when he was taken across state lines into a free state he automatically became free himself. He claimed that for his now former owner to force Scott to accompany him back to the South and back into bondage was nothing short of kidnapping.
Unfortunately Scott had to sue in federal court, where the sentiment ran pretty strong against any recognition of blacks as citizens. In his majority opinion Taney wrote that it was basically unthinkable to even consider the idea of blacks as citizens, since as citizens they would have “the right to enter every other state whenever they pleased … 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.”
Two things are abundantly clear from Taney’s writings in Dred Scott: 1. Taney saw the Second Amendment as absolute in its protection of the right to arms for all citizens. 2. Taney was opposed to allowing blacks to share in that right or other rights of citizenship.
Ironically, the same foundational principle of free people enjoying the right to arms inspired both the Second Amendment and America’s gun control laws. Our collective hypocrisy showed brightly as we ensconced the right as one of the most fundamental and important – when applying it to ourselves – and excoriated it as dangerous and a violation of “common sense” – when applying it to blacks.
In the years that followed the Civil War, the desire to keep guns away from African-Americans outstripped the desire to maintain the principles of the Second Amendment. Lawmakers and judges enacted and supported laws that restricted the possession and carry of arms in a variety of ways.
Initially these laws were intended to only be enforced against African-Americans, but it wasn’t long before they were being applied to other various “underclasses” – the poor, recent immigrants and people in less respected trades. Eventually people’s sense of fairness began kicking in, but rather than repeal the oppressive laws, they began enforcing them more even-handedly against everyone.
The definitions and history that was so intentionally twisted and distorted to disenfranchise black citizens became the foundation for disenfranchising the citizens of many states, and in 1934 the entire nation with enactment of the National Firearms Act.
Even then Congress and the federal government recognized the supremacy of the Second Amendment, but they used the same sort of distorted legalese to claim that they were not exercising regulatory powers, but rather exercising taxing powers and that there was nothing in the Constitution saying they couldn’t tax firearms.
The Supreme Court then spent most of the next 70 years avoiding the issue. They dodged a bullet in the 1939 Miller case, which challenged a conviction for transporting a sawed-off shotgun across state lines. The plaintiffs in the case were no-shows, and the Court made its ruling based solely on the case presented by the government. Their conclusion was that since they had no evidence that a short-barreled shotgun was common in the service of the militia, they didn’t see that it would be protected under the Second Amendment.
Of course short-barreled shotguns have always been staples of the armed forces, but that didn’t matter because there was no one present to inform the Court about that fact in 1939. The Court’s suggestion that only military-style weapons were protected under the Second Amendment was, and continues to be, ignored, but a comment made earlier in the decision to the effect that the most important aspect of the Second Amendment was its relationship to the militia, was clutched to the chests of hoplophobic judges and gun banners and interpreted to mean that the Second Amendment only applied to people actively serving in the militia.
That idea was repudiated by the Supreme Court in 2008 with their decision in DC v. Heller and the follow-up case McDonald v. Chicago. There is much going on in that arena today, but that will have to wait for Part 2 in this series on the history of the gun rights war.