Gun Anarchy and the Unfree State
As Americans ponder how to make sense of the latest horrific gun massacre—the deadliest mass shooting in modern American history, at least for the moment—it’s long past time to start thinking harder about what sort of gun policies will increase the security of a free state and what measures might imperil that security.
To begin reckoning with this challenge, it’s worth pausing to consider the entire wording of the Second Amendment. Contrary to what the NRA would have us believe, the amendment does not even mention guns, but instead proclaims, “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.” Thus, the Second Amendment, in contrast to the First Amendment, contains a preamble; an introductory clause affirming the necessity of a well-regulated militia. This arcane Latinate construction so dear to the Founding generation was an ablative absolute. Translated into modern parlance, the amendment would read something like this: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
Also, note what the aim of a citizen’s militia is: achieving the security of a free state. In other words, the Second Amendment not only ties the right to keep and bear arms to a particular means, but it states a clear purpose. What, then, is entailed in promoting the security of said “free state”? To begin with, we should clearly stipulate that the individual right of self defense—the one closest to the heart of modern Americans—denoted something very different from a free state’s maintenance. Americans esteemed this right, but did not have much to worry about when it came to safeguarding it. Indeed, the right was such a fixture of Anglo-American law that John Adams used it as the basis for his defense of the British troops charged with murdering civilians in the Boston Massacre. An American jury empaneled to hear that case found Adams’s argument entirely persuasive and exonerated six of the eight soldiers.
How can one enjoy liberty in a society awash in guns?
So a free state’s security was something other than procuring the self-defense of a society’s individual members. It was, rather, a collective enterprise: In the eighteenth century, the security of a free state was accomplished by a well-regulated militia—a local institution, composed of citizen soldiers. And as the wording of the amendment makes plain, that militia was subject to extensive regulation by government. Indeed, militia statutes were typically the longest laws on the books in early America. So the logical question that one ought to ask—one that seldom gets raised in the contentious modern debate over the role of guns in contemporary American society—is this: How do we maintain and promote the security of a free state when we no longer live in small rural communities and depend on well-regulated militias? How can one enjoy liberty in a society awash in guns?
This is, at bottom, a historical question—one that’s largely anathema to the NRA and other advocates of expansive gun rights. Many gun-rights advocates fail to understand the actual historical background of the Second Amendment because our debates over gun ownership typically revolve instead around a potent set of myths that cloud our historical understanding. Chief among these myths is the iconic image of the “good guy with a gun,” eagerly manufactured and marketed by American popular culture. From the dime novels of the nineteenth century to Hollywood westerns and more recent figures such as Jason Bourne, a powerful entertainment folklore has infused the gun-rights narrative.
But as the mass shooting in Las Vegas—staged at a country music concert featuring several artists who are affiliated with NRA outreach efforts—has made excruciatingly clear, the reality of guns in contemporary America is far more dark and bleak. The horrific images of carnage, in Las Vegas, Orlando, Newtown, and other sites of gun mayhem, have become a painfully common fixture in our lives.
The only way in which American society can function with so many guns is to create an effective regulatory scheme. We now face gun anarchy, and desperately need the well-regulated liberty so prized by the Founding generation. But how can our government effectively regulate guns given the limits imposed by the Second Amendment? Here history, real history, not the mythic history of Hollywood westerns, may offer some insights. As long as there have been guns in America, they have been extensively regulated, both by common law and statutes. Gun regulation did not fade away after the adoption of the Second Amendment; it increased.
The landmark Supreme Court ruling in District of Columbia v. Heller (2008) established an individual right to own guns, while resting on a largely fabricated version of the past—something common to originalism, which remains an ideology pretending to be a neutral judicial philosophy. Had the majority in Heller been serious about historical inquiry, it would have reviewed the vast record of presumptively lawful regulations with a long historical pedigree.
It’s striking that all sides of the gun debate are required by the dynamics of our politics to make at least a show of consulting the historical context that produced the Second Amendment. By contrast, nobody really cares how the Founders thought about the First Amendment or criminal procedure. Indeed, most Americans would likely cringe if they realized how un-libertarian the Founders were when it came to safeguarding the rights of the press and criminals. Yet, for better and often for worse, the Second Amendment, alone among the first ten amendments to the Constitution, inexorably pulls us back to the history of the Founding era, if only for the sake of reaffirming an allegiance to abstract principles of gun regulation or untrammeled gun ownership.
Gun regulation did not fade away after the adoption of the Second Amendment; it increased.
Indeed, one of the problems that supporters of gun regulation faced prior to Heller was their inability to frame a coherent theory of the Second Amendment that made sense to large numbers of Americans. Modern American culture is rights-focused, and the holders of rights are individuals. Of course, this was not always the case in Anglo-American law. Guilds, towns, and even the city of London were corporate or collective entities that enjoyed a variety of rights, but such historical arguments are the stuff of scholarly articles, not bumper stickers. In the great battle of the bumper stickers, gun-rights advocates always out-gunned their opponents: “when guns are outlawed only outlaws will have guns,” “gun control means using both hands” and—my personal favorite—“take my wife, my dog, but not my gun.”
In the years leading up to Heller, advocates of gun control largely abandoned history and constitutional theory to their gun-rights opponents. This misguided abdication gained inadvertent support from historians, who all but stopped writing about traditional topics in constitutional history, ceding this field to political scientists and law professors. Instead of engaging with the finer points of Second Amendment history, supporters of gun regulation focused much of their attention on public health arguments, turning the issue of gun regulation into a policy question, not an emotionally resonant issue of individual freedom. Americans can be sympathetic to such arguments—but in a battle between regression equations and bumper stickers steeped in red, white, and blue, the outcome was not hard to predict.
The only way to battle historical mythology is with real history—and when it comes to sorting out the question of robust gun regulation, the lessons of history are striking indeed. In the aftermath of Heller, a new wave of empirically grounded historical scholarship finally emerged, offering some keen insights into how we might move forward in this acrimonious debate. As Justice Scalia wrote in his majority opinion in Heller: “although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on long-standing prohibitions.” Thus, according to Heller, regulations grounded in long-standing practice are presumptively lawful.
It turns out that there is a long history of gun regulation, one stretching back to fourteenth-century England. The Statute of Northampton (1328), a law enacted during the reign of Edward III, declared that all individuals, regardless of their station, were bound to “bring no force in affray of the peace, nor to go nor ride armed by night nor by day.” The statute also provided a means of enforcement: agents of the king could arrest violators who would be obliged “to forfeit their armour to the King, and their bodies to prison at the King’s pleasure.” This rule was transferred to the American colonies. A popular legal guide from the colonial era summarized its prohibition succinctly: “Justices of the Peace, upon their own View, or upon Complaint, may apprehend any Person who shall go or ride armed with unusual and offensive weapons, in an Affray, or among any great Concourse of People.”
It’s worth pausing here to think about the historical function served by the office of the Justice of the Peace. The role of the justices of the peace, under English common law and the newly absorbed versions of the common law flourishing in most states after the American Revolution, was to preserve the peace. This power clearly included the authority to disarm, detain, and imprison those who disturbed the peace. It’s also worth pondering the term “offensive weapon” in its historical context. In the contemporary American context, we generally view guns as defensive weapons as much as offensive ones. But this was decidedly not the case in English common law: guns were always offensive weapons and were defined in categorical opposition to defensive weapons such as shields and armor. Although gun rights advocates have conjured up a right to peaceable armed travel, such a right would have been incoherent under English law: traveling with offensive weapons in public was by its very nature an affront to the King’s Peace. After the American Revolution, such actions continued to be an affront to the peace and could be punished by disarmament and fine.
Given that traditional Anglo-American law took a dim view of traveling armed in public, especially in populous areas, how did we arrive at the permissive attitude that prevails today in many parts of America, such as Nevada? Although this story is complex, part of the answer rests with the gun-toting habits of Americans in the slave South. One of the many historical ironies of the Heller decision is that it affords the greatest protection to handguns, the modern heirs of Alexander Hamilton’s dueling pistols, and not the military style arms that would have been the main weapon of the eighteenth-century well-regulated militia inscribed in the Second Amendment.
Pistols in the age of the Second Amendment constituted no more than 10 percent of the weapons stock owned by Americans. Moreover, they were generally not very reliable. It was not until the market revolution of the nineteenth century, with some assistance from the marketing genius of Yankee entrepreneurs such as Samuel Colt, that handguns became both plentiful and deadly. The proliferation of these weapons fostered the first modern-style laws seeking to control the flow of weapons, during the rambunctious age of Jacksonian America. This was also, not coincidentally, the time when the word individualism first entered American English by the back door, courtesy of the English translation of Alexis de Tocqueville’s masterful commentary, Democracy in America. The South took the lead in outlawing these weapons, which had little utility for a well-regulated militia. Indeed, the first great wave of legal decisions adjudicating just what the right to bear arms meant originated in the slave South. Southern courts split on the issue. Some adopted a quasi-modern libertarian reading of the Second Amendment, and others carried forward the militia-based view that dominated the eighteenth century. Heller favored the former view and dismissed the latter.
It does seem odd that modern American jurists would take their moral and legal cues from slave-owning judges in the antebellum South, but that is the world Heller has bequeathed to us.
It does seem a bit odd that modern American jurists, including a diehard originalist like Scalia, would take their moral and legal cues from slave-owning judges in the antebellum South, but that is the world Heller has bequeathed to us. Still, history abounds with ironies and Heller is no exception. Heller’s use of history cuts both ways. A different approach to gun regulation emerged out of an evolving English tradition, one that was transformed beyond the rapidly narrowing feudal world of the slave South. This tradition was embedded in a previously invisible record of legislative enactments seriously limiting armed travel in public. Outside of the slave South, a different, more restrictive tradition regarding the conveyance of arms in public took hold. Starting with Massachusetts in the 1790s, this tradition, which became the dominant model in nineteenth-century America, limited armed travel to those cases where one faced an imminent danger. In other words, the idea that one had to have a good cause to be armed in public is as old as the Founding era.
In Heller, Scalia dismissed the idea that courts ought to engage in a form of ad hoc interest-balancing to arrive at a reasonable trade-off between public safety and the rights of gun owners. The problem with Scalia’s argument is that both common law and the Second Amendment itself affirmed such an approach. The right of individuals to arm themselves under common law was always balanced against the need to preserve the peace. The Second Amendment itself reminds us that the right to keep and bear arms must serve the goal of preserving a free state. The havoc wrought by gun violence saps the vitality of a free state. And in the wake of the mass carnage in Las Vegas, even ardent gun advocates would be hard pressed to plausibly contend that our current balance is what the Founders had in mind when they wrote the Second Amendment.