Shall Not Be Infringed: An Alternative Perspective on the Second Amendment

“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.”¹ These are the words of the Second Amendment to the Constitution of the United States, and these are the words used to justify opposition to almost all gun control in the US. Loosely, the justification is that the right “to keep and bear arms” refers to firearms in general, so any regulation on them violates this right. However, this article will demonstrate that the founding fathers clearly wanted to protect “the people” mentioned in the Amendment, not the arms. The Second Amendment was written in response to British legislation regulating the bearers of arms, not arms themselves. Only in the twentieth century did the modern argument against any and all types of regulation appear. Therefore, the right to keep and bear arms, as outlined in the Second Amendment was codified with the intention of stopping the confiscation of weapons from certain groups of people, not the regulation of firearms in general.

English legislation from before the establishment of the United States clearly defined the status of firearms, and the founding fathers used it as a model for the Second Amendment. The English Bill of Rights, written in 1689 after the ascension of William III and Mary II to the throne of England, is one of the cornerstones of English Common Law and a direct influence on the United States Bill of Rights. The Bill explicitly mentions guns and their regulation. However, there is no reference to firearms as an abstract concept, only those with the right to bear them. Describing the status of guns in England, Parliament declared, “the subjects which are Protestants may have arms for their defence.”² The Bill of Rights only protects the gun rights of Protestants. William and Mary only came to power after the ouster of the Catholic James II by Parliament in 1688. The English ruling class, comprised of Protestants, feared a Catholic rebellion, so the limitation of firearms to Protestants was seen as a way to control this Catholic minority. This regulation clearly laid out the precedent that gun control was an effective means of controlling groups and oppressing minorities, not types of weapons.

This idea was also salient to the founding fathers. After the First Amendment’s protection of religious freedom, granting the right to bear arms to all groups of people was the logical next step. If all religions are equally protected, then no single religion can have the right to bear arms over others. Taking the English Bill of Rights as a template, the founding fathers saw the Second Amendment as a way to deregulate types of gun owners, not types of guns.

Avoiding the oppression of certain groups was clear in the minds of the Founders as England imposed gun ownership restrictions in the American colonies in an attempt to control minorities. A 1656 Massachusetts court order reads, “henceforth no negroes or Indians, although servants to the English, shall be armed.”³Being so early in the history of English colonization of the Americas, colonial policy would be incredibly similar to English policy overall. In the United States, there was precedent to restrict the rights of certain groups of people that predates the English Bill of Rights’s restriction on Catholics, which occurred a couple decades later. A key phrase here that would have alarmed the Founders is “although servants to the English.” This phrase highlights the idea that gun control existed solely to restrict, not to protect, as the English were fully willing to remove firearms from anybody, regardless of their loyalty to the crown. While the Founders may have shared English hostilities toward Black and Native American individuals, this law still would have scared them because it gave England precedent to restrict loyal subjects. And until the first shots were fired at Lexington and Concord, that is exactly what the Founders were: loyal subjects. The Founders knew that British gun laws were designed to control groups of people, so their response, the Second Amendment, was designed to prevent this suppression of people groups.

Even in their own borders the British demonstrated that guns were privileges held by groups, not individuals. After a rebellion in Scotland, the British government passed the Disarming Act which, among other provisions, completely banned guns in parts of Scotland: “The whole Highlanders without distinction are disarmed forever and forbid to use or bear arms under penaltys.”⁴ To the British, certain groups were considered too dangerous to have firearms, and they swiftly and absolutely ensured that these groups were suppressed. To the new United States of America, ripe with the idea that “all men are created equal,” a law that restricted the rights of a certain group of people was completely contrary to the idea of justice. Therefore, all groups of people must have equal rights under the law, including the right to own weapons. In the minds of the Founders, people could not be restricted.Yet, guns are not people, and these Enlightenment ideas of equality and legal rights do not apply to them.

In early United States history, most gun control was seen as constitutional. The modern gun control argument in general violating the Second Amendment only arose in the 20th century. In an article for The Conversation entitled “Five Types of Gun Control the Founding Fathers Loved,” Dr. Saul Cornell, Guenther Chair of American History at Fordham University, explains that the founding fathers saw gun control as completely necessary.⁵ Cornell enumerates that the founding fathers would have opposed concealed carry and stand your ground laws and would have even supported loyalty oaths to the government to own a gun. Using the modern argument that the Second Amendment exists to protect the people from a tyrannical government, Cornell explains that a government would never protect the instruments of its own demise, no matter how “tyrannical” it had become. Why would the Constitution ensure that every citizen is able to orchestrate its overthrow? Cornell even writes that “The Second Amendment poses no obstacle to enacting sensible gun laws. The failure to do so is not the Constitution’s fault; it is ours.”⁶ The opposition to sensible gun control originated in modern times, not in the minds of the founding fathers.

The idea that the Second Amendment applies to firearms appeared in the twentieth century. Writing for Politico, Michael Waldman, President of the Brennan Center for Justice at NYU School of Law, asserts that “gun rights and gun control were seen as going hand in hand” for the first century and a half of United States history.⁷ Waldman clearly notes 1960 as the year in which the gun-control debate took on its modern form. He references an article in the William and Mary Law Review by Stuart Hays entitled “The Right to Bear Arms, A Study in Judicial Misinterpretation.” In this article, Hays lays out that the public should have unfettered access to firearms to preserve their “right of revolution” imploring his readers to “witness the War between the States in 1861.”⁸ Waldman makes two points regarding this article. First, only 60 years ago was the constitutionality of gun regulation first questioned. Second, Hays’ main argument as to why guns must be unregulated is a defense of the Confederacy, and treason against the government of the United States is the height of unconstitutionality, voiding Hays’ argument of supposed constitutional literalism. In the United States, firearms have been regulated since English colonists first arrived, and their regulation was only disputed less than 70 years ago by a Confederate sympathizer.

From the foundation of British colonies in America, guns have been regulated. As an empire, England regulated the ownership of firearms to specific groups of people to control minorities that could have been subversive to the government. The founding fathers had this British regulation of firearms in mind as they laid out the Second Amendment, guaranteeing the right of all people to possess a firearm. However, the Second Amendment does not intend to protect guns themselves, and the history of their regulation in the United States is three times as long as the history of their free ownership. The Second Amendment’s “right to bear arms” clearly protects certain minority groups from having their rights restricted. It does not protect guns from any and all regulation by the government.

References

1. The National Archives: America’s Founding Documents, “The Bill of Rights,” 1791 ↩

2. Yale Law School: Avalon Project, “English Bill of Rights 1689” ↩

3. Shurtlett, Nathaniel Bradstreet, 1853, Records of the governor and company of the Massachusetts bay in New England, Boston : W. White, printer to the commonwealth, Digitized by Cornell University Library ↩

4. The National Archives (UK), “The Disarming Act,” 1745 ↩

5. Cornell, Saul, 2017, “Five Types of Gun Laws the Founding Fathers Loved,” The Conversation, October 15, 2017 ↩

6. Ibid. ↩

7. Waldman, Michael, 2014, “How the NRA Rewrote the Second Amendment,” Politico Magazine, May 19, 2014 ↩

8. Hays, Stuart. 1960, “The Right to Bear Arms, A Study in Judicial Misinterpretation,”William and Mary Law Review, March 1960 ↩