The recent mass shootings in Texas and Ohio have raised our national debate about gun control to a fever pitch once more. As Congress returns to Washington after its summer recess, it will face mounting pressure to pass legislation to deter such attacks and other forms of firearms violence.
The last gun-control measure Congress passed was the 1994 Assault Weapons Ban (which expired in 2004). Since then, the Supreme Court’s ruling in the 2008 case District of Columbia v. Heller , which struck down a D.C. law banning handguns, represents a potentially significant new barrier to passing gun-control legislation. For the first time, the court ruled that the Second Amendment protects an individual right to possess a firearm for self-defense, unconnected with militia service. Today, the Supreme Court, with an even stronger conservative majority, seems poised to extend this ruling to other aspects of gun ownership.
The Heller decision stemmed from a new interpretation of American history that emerged over the past 40 years as a result of concerted advocacy by gun rights supporters such as the National Rifle Association. This campaign — which rewrites our national history to fit a modern gun rights narrative — threatens to lead the Supreme Court further astray.
The Second Amendment of the Bill of Rights, ratified in September 1791, reads: “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.” For more than 200 years, most legal scholars and historians viewed this language as conferring a right “to keep and bear arms” only in the context of a “well-regulated militia.”
The Founders viewed the militia as a way to ensure civic participation in the security of the United States and to prevent the need for a permanent standing army that would create the risk of military despotism. They understood the militia as a well-trained, disciplined and government-sponsored bulwark of liberty — not a random group of armed citizens acting as vigilantes. Over time, however, the Founders’ vision of a militia proved too difficult to realize, and by the 1840s national defense began falling to paid volunteers funded by states.
Although this civic republican understanding of the Second Amendment did not preclude citizens from owning and using guns for lawful purposes, there was a consensus throughout the 19th century that state and local governments maintained broad police powers to regulate the carrying of dangerous weapons in public. The Supreme Court applied the militia-centered (or collective) view of the right to bear arms well into the 20th century. It upheld the 1934 National Firearms Act and the 1938 Gun Control Act, which imposed severe restrictions on machine guns, sawed-off shotguns and silencers. In United States v. Miller (1939), the court found that the Second Amendment protected the right to keep and bear firearms only for certain military purposes.
This ruling fit with the prevailing legal understanding of the Second Amendment as well. From 1900 to 1959, only 12 studies on the Second Amendment appeared in professional legal journals, each of them understanding the right as being linked to a well-regulated militia. In a 1955 internal report for the NRA, Jack Basil Jr. (who later became director of the NRA’s Legislative Service) acknowledged that “the Second Amendment appears to apply to a collective, not an individual, right to bear arms.”
Gun rights supporters, steered by the NRA, resisted this broad consensus, instead pushing an individual rights narrative in the courts and in public discourse. Although the NRA was best known to the public for its education and safety programs between the 1920s and the 1960s, behind the scenes it lobbied governments and organized at the grass-roots level to promote a view of firearm ownership and use as a badge of citizenship essential to public safety and national defense.
Nonetheless, the individual rights view was slow to gain wider traction. In 1968, Congress responded to the crime and assassinations of the 1960s by passing the Gun Control Act, which regulated interstate firearm sales and imposed new age and mental health restrictions on gun purchases. Even Charlton Heston — who decades later became famous for saying the government would have to pry his gun from his ” cold, dead hands” — joined the public campaign in support of passing the act. The actor served five terms as president of the NRA.
Angered by the passage of this law, and by a 1971 incident in which an NRA member was shot and killed during a raid by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the NRA redoubled its efforts to promote an individual right reading of the Second Amendment.
This endeavor would prove far more successful in the following decades than it had been in the past because of legal and political changes. The Republican Party was growing increasingly conservative and taking a skeptical view of federal power. Politically, removing restrictions on donations to political parties created an imbalance that also influenced Republican sentiment, given that the NRA had a vastly larger megaphone than the victims of gun violence.
These political forces aligned with the rise of originalism as a constitutional methodology — focused on what the Constitution meant to its drafters — to create a receptiveness to the individual rights interpretation. And that understanding seemed to be receiving expert endorsements, too. By the 1980s, a small group of lawyers — many affiliated with the NRA and other gun rights groups — started to publish a flood of studies in legal journals arguing that the original language of the Second Amendment was intended to protect hunters and sports shooters against any restrictions on their use of firearms.
History was an integral weapon in advancing this narrative. Through the NRA’s magazines, supported scholarship, sponsored films and a private museum network, the group tried to impose a unilateral reading of American history: what might be called “gunsplaining” for the masses. It convinced many people — including law professors and judges — that the individualist interpretation was the “standard model” of American gun history.
A key moment in this battle came in 1994, when historian Joyce Lee Malcolm published “To Keep and Bear Arms: The Origins of an Anglo-American Right ,” which argued that the individual right to carry arms can be traced back to the 1689 English Bill of Rights. Justice Antonin Scalia drew from Malcolm’s book when he wrote for the majority in Heller .
The problem with Scalia’s opinion, however, is that it rests on a false interpretation of the past. Based on archival evidence, historians have found no record in English common law of an untrammeled individual right to bear arms. On the contrary, common law in England and 18th-century America always recognized that personal security was best protected through a well-ordered society in which the public carrying of dangerous weapons was closely regulated.
The 1328 Statute of Northampton, for example, constrained the right to travel with dangerous weapons in public by limiting the public carriage of swords and other medieval weapons (firearms not yet having been invented). This statute was the prevailing rule of law in the American colonies through the late 18th century, with exceptions being made for people to carry arms for trade and repair, while traveling and for hunting).
Such laws of centuries past may seem disconnected from the mass shootings and everyday gun violence occurring nationwide today, but they are not. How the court understands this history may shape how the nation responds to the gun violence epidemic. For this reason, it is crucial that the court look beyond the distorted history presented by gun rights activists.
New scholarship is beginning to break the NRA’s efforts to monopolize the history of guns in America. Although the evidence is often complex and contradictory, it shows that the main historical tradition inherited from English common law emphasized the need to regulate firearms, and weaponry more broadly, in the interest of public safety. Contrary to the gun lobby’s view of an unlimited individual right to bear arms, American courts and public opinion have never been on the side of unregulated gun ownership.
The state’s duty to protect the peace and promote public safety is an enduring principle of common law that informed the framing of the Constitution.
In light of this history — and in line with what the architects of the Second Amendment would have endorsed — the courts must allow lawmakers to make reasonable efforts to regulate the use of firearms.
LINK ORIGINAL: Washington Post