Category: Second Amendment

The Second Amendment does NOT protect private gun ownership

…yes, if you read the HP you’ve seen that title before. For our third post in the series on the Bill of Rights, we’re reaching back to one of the first posts we put up in the infancy of the site. It was short—we used to be like that! The topic is still unfortunately pertinent today. We will do a little updating as we go along:

Let’s go out on a limb here to state the obvious.

How does it read? “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.”

A well-regulated Militia. Not a well-armed citizen.

We have to agree with ourselves here. But before we can analyze, we have to really understand. The amendment is written in that cart-before-the-horse way that plagued 18th-century writing in English. If you break it down, it says “Since the militia is necessary to national security in a free state, the government cannot forbid the public to keep and bear arms.”

This is such a time machine window into the state of the early U.S. We had no standing army. We had only volunteer state militia for our national defense. The key words are “free state”: rather than create a standing army, which was only ever used in Europe to oppress the people and defend the monarch’s absolute power, the U.S. wants to continue to rely on volunteer militia.

But what if the federal government tries to get around this protection of the people by forbidding them to own guns? That way, they can’t form militia, and the federal government could create an army after all, arm it itself, and be tyrannical.

The answer is to forbid the federal government from outlawing private gun ownership. As we said back then…

This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service. You keep your arms so that you can serve in the militia. This was written when the main form of defense was state and local militias, for which you needed your own gun.

Now, we’re not a strict-interpretation-of-the-Constitution people here at the HP. We believe the Constitution is flexible and can be read in new ways. But this Amendment seems so clearly to be about protecting a volunteer military—to be about military service—that to extend it to people who want to be able to carry guns into a bar or a supermarket, or keep them in their glovebox, is clearly untenable.

That is, the Second Amendment has no meaning outside of military service. It’s ironic that most strong supporters of expanding carry laws and gun ownership are often very anti-military (official U.S. military, that is). They want guns to protect them from an attack by the U.S. armed forces that they feel is imminent.

 The Second Amendment does NOT encourage or demand that average citizens keep guns in their homes for any reason. It does not mention hunting. It does not mention personal defense. It is strictly about maintaining a national army.

There are times when we wish the Founders had been more specific, but this is not one of them. The Second Amendment is clearly about military service. It cannot be read loosely to apply to anything else—a new constitutional amendment would be necessary to do that. Until that new amendment is ratified, we will continue to honor the Second Amendment as it is written.

Next time: another military amendment

Why the American Revolution is not a model for gun ownership today

Often one hears Americans on the news saying that the Second Amendment is necessary to us today because we may need to take up arms against an oppressive government in the 21st century, just as we did in 1775, and that those who anticipate doing so in the near future share the motivations of Americans during the Revolutionary War. Our thoughts on the Amendment can be found here; in this post, we will spell out why our situation in this century is not at all like that on the eve of Revolution in the 18th century, although we have the feeling this should be obvious without our intervention.

—During the Revolution, we fought a foreign government and a foreign occupation.

This is the key item to note. Granted, we overstate a little, so let’s go through it and be clear. The American colonies generally had popularly elected legislatures and royally appointed governors, so laws in the colonies came from two very different sources: representatives of the American people, and representatives of the British crown. Our experience of law was mixed. Legislatures generally made life difficult for governors who betrayed the people’s interests, especially in the realm of taxation, and so the influence of royal governors, who technically reported to no one but the king, was limited. Until, that is, the 1760s, post-French and Indian War, when London began direct rule of its colonies in North America. Parliament passed Acts (Stamp Act, Sugar Act, Tea Act, Coercive Acts) which were to be enforced without any input from legislatures. Indeed, even the governors were bypassed eventually as British soldiers were sent to America to make sure Acts were enforced. Americans who disobeyed Acts were to be sent to London for trial. This is the key moment, in the 1760s, when long-standing doubts about how much the American colonies owed to Britain were crystallized for many into clear convictions that London and Parliament did not consider Americans to be British citizens and did not grant them the rights of citizens, and were thus, through these Acts, imposing a foreign government on the American colonies. By refusing to allow American representatives in Parliament, the British government was confirming this. By sending troops to maintain order, the British government was occupying lands it believed to be hostile possessions; Americans were alien combatants.

It’s very clear that we are not remotely in that position today. Any Americans who oppose the government and/or its actions (taxation, immigration, welfare) are opposing their own government, popularly elected by their fellow Americans and even, perhaps, by they themselves. We don’t need to resort to arms to oppose our government because soldiers from another country are not in our streets and homes enforcing foreign laws. We resort to the voting booth, the referendum, and the ratification process to change or oppose our government. U.S. citizens today have rights that their government enforces and upholds—and if it doesn’t, we work through the courts and the political bodies to make it do so.

—Americans during the Revolution did not fight on their own.

They fought in their locally organized militias, which joined the Continental Army led by George Washington. They fought in the army, not as a vigilante group. Individual citizens submitted themselves and their guns to a government-authorized national army. That’s hardly what people today are picturing when they say they need guns to fight the government if it becomes oppressive. In 1775, Americans were fighting a formal war against a formal army. They weren’t sitting in their homes waiting for someone to challenge them and get blown away.

—Americans during the Revolution were fighting to keep their government alive.

Americans who fought in the Revolution were hoping to see the new government, represented by the Continental Congress in Philadelphia, firmly and officially established as the government of their nation. They were not fighting to get rid of government, as so many Second Amendment fans seem to want to do today. They knew that the nation needed a strong government (though not necessarily fully centralized) to survive, and their aim was to make sure that government was fair once it was established—that’s why the Constitution was ratified by popularly elected officials, and why even common people clamored for a Bill of Rights to be added to it. Americans in the 1770s were fighting for government, not against it. They did not believe that armed individuals were a proper substitute for state and federal government.

So we have three good distinctions to draw between ourselves and our ancestors, and hopefully we can put this ridiculous argument to rest. We no longer have to use guns to maintain our freedoms; we have to use our rights as citizens to vote and participate in government to maintain our freedoms.

But what if our government becomes perverted and undemocratic, people ask? What if our political system fails? Then we’ll have to use force to protect ourselves.

it seems clear that the only way this could happen is if the American people fail in their participatory duty as citizens, so we are back to our original argument, which is that as long as we do our duty, the government we elect can never fail to be what we want it to be. It’s only by withdrawing from participation in our democracy that we lose it, and by looking for reasons to rise up in arms that we threaten ourselves with that dire possibility.

Truth v. Myth: “Born Fighting”

Senator James Webb (D-VA) published his book Born Fighting: How the Scots-Irish Shaped America in 2004; the Smithsonian Channel just broadcast the video adaptation recently. It was aired in two parts. Part 1 focused on Scotland, beginning with Hadrian’s Wall, and followed the eventual appearance of Protestantism in Scotland, the conflicts with England over non-conformism, and the recruitment of Protestant Scots by England into the north of Ireland to settle land seized by the English government from Catholic Irish landholders (thus changing the Irish population, it was hoped, and calming the place down for English rule). The Scots encountered growing hostility from the native population they were helping to colonize, and after the siege and battle of Londonderry, in which they received no help from England in beating off the Catholic Irish, many of the Scots—now called Scots-Irish or Scotch-Irish by the native population who did not accept even those born in the country as Irish, left for another English colonial land: America.

This first part of the documentary was not perfect, but it was at least technically accurate in most of its details. The second part goes dramatically off-course into the damaging kind of us-vs-them, who’s-a-real-American, America-is-about-violence, and racial politics that is characteristic of myth. We’re going to take the time to rebut the myth perpetuated by one of our Senators because it’s important to call people in high office on the damage they do to historical truth and our own citizens’ perception of what our country stands for.

Like most people who have a thesis that one group of people, one invention, one idea, etc., has shaped the course of world history, Webb consistently makes statements about the Scots-Irish that could be true of any group. “This culture shaped America”, he begins, “…creating the very basis of American democracy.” Which culture that is part of America has not shaped it? Which culture has left no imprint on our government, political history, treasured ideas, or important battles? And since our democracy has been constantly evolving since 1775, no one group can claim to have established the basis of that democracy. (If you had to choose, you’d have to say Americans of English descent. The men who framed our government and put its ideals and principles into law were overwhelmingly of English background.)

Webb’s elevator description of the Scots-Irish is “fight, sing, drink, pray”. This to him sums up their willingness to fight any war, their resolve and determination, their rebellious refusal to submit to “outside” law, and their strict morality. Again, it’s not hard to think of other groups do not have the same reputation: the Irish, Greeks, and Mexicans come to mind. But Webb begins part 2 with the story of the first Scots-Irish in America, again recruited by the English to put down the locals and act as colonizers. Scots-Irish people settled in Pennsylvania on the borderlands between Quaker settlement and Native Americans. Webb describes their experiences there in what he calls “the unimproved wilderness”. The word “wilderness” comes up frequently, and is never questioned as inaccurate (as the land had been settled, hunted, and known by its native inhabitants for millennia). The Quaker refusal to fight is mentioned repeatedly, and seems to be put out there to deride the Quakers and anyone else who questions the value of violence and war. This is a theme that runs through the show.

Again, at the end of the Pennsylvania section, Webb says that the “flood” of Scots-Irish immigrants that followed “would eventually transform America”, and again it’s a claim you could make about anyone, including the English, French, and Germans who preceded  or came along with the Scots-Irish just about wherever they went.

It is almost funny when Webb describes the pioneers in the Shenandoah Valley who “carried their few belongings with them” (unlike all other pioneers?) into the “wilderness” only to discover “they weren’t alone”. The fact that the land was inhabited is, of course, the first indicator of its not being a wilderness. The Native Americans whose land the pioneers were settling are basically presented as threatening, though it is of course the natives who were threatened by white settlement and claims of land ownership.

When the French and Indian War began, Webb says, the Scots-Irish fought eagerly and made their name as “unflinching fighters”. He characterizes their attitude as “This is my land and I’m going to stay here and protect it and if I have to, I will fight for it.” Which again is the precise attitude of every group of people in human history who have been in a war on their own territory. Only the Native Americans, in this case, really had the right to say it.

Already, Webb is making a case he will repeat many times: the Scots-Irish a) like to fight, b) are brave (really braver than anyone else), and c) show their independence by fighting. The first tenet really discredits the second two. People who like to fight aren’t really brave, and they don’t fight for independence, but because it’s what they do. The Scots-Irish on the frontier fought because that’s what they had been hired to do by the British governors who brought them in (payment being the right to settle and the grant of religious freedom) and they wanted to keep the land they had settled. That is not really about bravery or independence.

In fact, we have seen the Scots-Irish now as established colonizers, people with no hesitation to help a colonial power destroy native people in return for those people’s lands. It is odd that this is never addressed in Webb’s tale of the Scots-Irish as freedom-loving people who always fought tyranny.

His description of the period between the end of the French and Indian War and the beginning of the Revolutionary War is, politely put, difficult to understand. “Britain tightened its grip over America’s east coast. And now, isolated from British colonial rule to the east, the Scots-Irish frontiersmen settled into their American roots… and turned their backs on bigotry in America’s colonial towns”.

The bizarre inaccuracies—British rule had always been most present on the east coast (which is why the British brought in the Scots-Irish to colonize the western frontier); but after the war concentrated more and more on controlling the western frontier; as frontierspeople the Scots-Irish had always been isolated from coastal society; and bigotry is never relegated to urban areas (see plantation life)—slowly make sense only as the show goes on and Webb talks about Andrew Jackson. Webb reveres Jackson, and has apparently bought into the idea Jackson and his followers evangelized for, that “elites” were running America and a cabal of “aristocrats” in the cities was ruining the nation. The idea that Jackson put power in the hands of average people is not true; he put his friends and financial backers into federal office regardless of their qualifications, he was a wealthy slaveholder, and he had no special regard for the rights of the “little guy”, as any Native or black American would tell you.

As for the idea that the previously isolated Scots-Irish were isolated still after the war, it’s not really true. Germans and Huguenots moved in large numbers into the American south from the mid-1600s right up to the Revolutionary War. Many of the Germans were Protestants unable to worship as they wished at home, and of course the Huguenots left everything behind in France to come to America in the name of religious freedom. Webb would have viewers believe the Scots-Irish were the only people in America (maybe in the world) who sacrificed for their freedom of religion, left everything behind, and braved the hardships of the frontier with no help from outside. All of the colonies of the south were first settled, of course, by the English. Most of them were non-conformists, just like the Scots-Irish, who refused to compromise their faith and left all behind in the name of freedom. In North Carolina, South Carolina, Georgia, and Kentucky, the Scots-Irish came in after the Huguenots and Germans.

The Revolutionary War saw many Scots-Irish enlist, just as it saw many members of all the groups in the colonies enlist. Webb focuses on the Battle of King’s Mountain of 1780, in which 900 Scots-Irish militia men routed 1200 British soldiers. The British, rigidly sticking to “European battle formation”, were mown down by the sniping Scots-Irish who were smart enough to use guerrilla tactics. Webb states there were 500 British casualties and 28 American. The ragged, poor militia “destroyed” the British army.

But it wasn’t completely that way. The British did not remain in formation, standing still waiting to get shot, but instead made repeated bayonet charges, which, while unsuccessful in winning the battle, at least made some sense. Of the five American militia leaders, one was of Huguenot descent (John Sevier), two were governors, two served in Congress, and two served in state legislatures; three were born into wealth, and one married into it. So the leadership was not completely rag-tag. The casualties were 244 killed, 163 wounded, and 668 taken prisoner for the British, and 29 killed and 58 wounded for the Americans. One reason for the high British death count was that the militia men continued firing after the British put up a white flag.

We’ll end this post with Webb’s second bizarre leap away from historical fact: he claims that “In 1783, America acknowledged the efforts made by the overwhelmingly Scots-Irish militiamen in the south in the Second Amendment to the U.S. Constitution”. First, the Second Amendment was adopted in 1791 with the rest of the original Bill of Rights (the Constitution wasn’t written and ratified until 1787). Second, a starkly modern political agenda is expressed here as historical fact. Webb goes on to say basically that people in the south care so much about gun ownership because they were once frontiersmen, and the frontiersman’s duty to protect his family over time turned into a right “for people with a long history of mistrust of the central government. There’s a saying around here: I’ll give up my gun when you pry it from my cold, dead hands.”

Where to begin. First, what region of our nation never had a frontier? Is it that the north was never frontier land? The west? Every region of the present United States began as frontier land, where people had muskets or rifles to hunt with and to fight Indians and to use as part of the local militia in times of war. Second, either gun ownership is about self-reliance (the frontiersman) or it’s about not believing in government. If it’s that southerners never trusted the federal government, that’s not about the frontier. That’s a mistrust of the federal government that was shared by New Englanders, Mid-Atlantic states residents, and every other region you can think of. That’s what made creating the federal government in 1787 so difficult; even the “elites” on the east coast had their doubts about it turning into a tyranny. (It’s funny that this suspicious government is the one that made a special Amendment to preserve the rights of the Scots-Irish. One wonders what prevented them from looking more kindly on such a government.)

Webb, I think it’s fair to say, is looking at 1791 through the lens of 2011 and 1865 to say that the south is right not to trust the unfair northern government that oppresses it today and has oppressed it since the end of the Civil War. (You’ll see why I say this in the next post.) But the Second Amendment was not written to give people a way to create a state; our Founders believed that our system of law, our democracy, would keep people safe and free. It’s our government and the laws it is based on and that it enforces that create our liberty, independence, freedom, whatever you like to call it. Guns are not law, they are an alternative to law. So I quarrel with Senator Webb’s description of the origins of the Second Amendment, and the validity of the southern (as he calls it) attachment to weapons. The Amendment was not written as a thank-you to the Scots-Irish, and it is not about substituting gun ownershp for centralized government.

Next time: Jackson, the Civil War, and how the entire middle class is Scots-Irish

The Second Amendment does NOT protect private gun ownership

Let’s go out on a limb here to state the obvious.

How does it read? “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.”

A well-regulated Militia. Not a well-armed citizen.

This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service. You keep your Arms so that you can serve in the Militia. This was written when the main form of defense was state and local militias, for which you needed your own gun.

Now, we’re not strict-interpretation-of-the-Constitution people here at the HP. We believe the Constitution is flexible and can be read in new ways. But this Amendment seems so clearly to be about protecting a volunteer military—to be about military service—that to extend it to people who want to be able to carry guns into a bar or a supermarket, or keep them in their glovebox, is clearly untenable.

The Second Amendment does NOT encourage or demand that average citizens keep guns in their homes for any reason. It does not mention hunting. It does not mention personal defense. It is strictly about maintaining a national army.