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December 2012, Week 3

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Thu, 20 Dec 2012 20:57:47 -0500
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Gun-Rights Advocates Should Fear History of Second Amendment

by Saul Cornell

Dec 18, 2012
The Daily Beast

http://www.thedailybeast.com/articles/2012/12/18/gun-rights-advocates-should-fear-history-of-second-amendment.html

     Think it's one short sentence that gives everyone the
     right to bear arms? Think again. Saul Cornell unravels
     the tangled history of one of our most misunderstood
     Amendments.

On Sunday, New York Sen. Chuck Schumer went on CBS's Face
The Nation and argued that people who support gun control
"have to admit that there is a Second Amendment right to
bear arms".

Schumer's effort to reach out to the gun-rights community
may be well-intentioned, but it is also deeply ironic. If
the nation truly embraced the Second Amendment as it was
originally written and understood, it would be the NRA's
worst nightmare.

     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.

It's time for a history lesson about one of America's most
popular and least understood rights. It's also long past
time to expose the hollow, ignorant fawning over the Second
Amendment by gun-rights advocates for what it is.

In contrast to the libertarian fantasies that drive the
contemporary debate about firearms in America, the Founders
understood that liberty without regulation leads not to
freedom, but anarchy. They understood that an armed body of
citizens easily becomes a mob. In other words, a bunch of
guys grabbing their guns and waving a flag emblazoned with a
rattlesnake is not a militia.

A cursory look at the history of the Second Amendment shows
that regulation was a central part of its rationale -
putting "well regulated" at the very start of the amendment
was no accident. For instance, starting in the colonial
period, states enacted a variety of "safe-storage" measures
to deal with the danger posed by stored gunpowder. A 1786
law went as far as prohibiting the storage of a loaded gun
in any building in Boston.

But many people who defend gun rights today are more than
happy to skim over the first part of the amendment in their
zeal to embrace the second. (The NRA itself literally
chopped off that pesky first half when it chiseled the words
on the face of its old headquarters.) As a result, our
modern gun- rights ideology is often unmoored from any sense
of corresponding civic obligation.

This ideology claims to rely heavily on the Second
Amendment, and yet it is rooted not in the Founders' vision,
but in the insurrectionary ideas of Daniel Shays and those
who rose up against the government of Massachusetts in 1786
and 1787. Indeed, there are gun- rights advocates today who
think the Second Amendment actually gives them the right to
take up arms against the government -  but if that were true
the Second Amendment would have repealed the Constitution's
treason clause, which defines treason as taking up arms
against the government!

This is all so deeply twisted: after all, the Founders
framed the Constitution in part as a response to the danger
posed by Shays' Rebellion.

As a result, our modern debate over gun rights has virtually
nothing to with the Founders' Second Amendment; that debate
actually started about 30 years after the Amendment was
adopted. What emerged was the notion that reasonable
regulation was not inconsistent with the right to bear arms.
In fact it was the only option in a heavily armed society.

Up until the 1980s, there was no "individual-rights" theory
of the Second Amendment. Many states had adopted provisions
protecting an individual right to own guns, but this
tradition was distinct from the Amendment. All that changed
when right- wing think tanks undertook a conscious effort to
fund new scholarship to rewrite the amendment's history. At
first that effort was not well received, even in
conservative circles. As late as 1991, former Supreme Court
chief justice Warren Burger famously called the idea of an
individual right to bear arms "one of the greatest pieces of
fraud -  I repeat the word `fraud' -  on the American public
by special-interest groups that I have ever seen in my
lifetime."

But the revisionism ultimately won over most of the legal
establishment, reaching its zenith in 2008, when the Supreme
Court broke with 70 years of established jurisprudence and
affirmed that the Second Amendment protects an individual
right to have guns in the home for reasons of self-defense.

In order to do this, the majority followed the lead of gun-
rights advocates and essentially excised the first clause of
the amendment -  the "well-regulated militia" part -  from
the text.

(Let us pause briefly to note the irony that the opinion,
District of Columbia v. Heller, was written by none other
than Justice Antonin Scalia -  America's staunchest defender
of originalism, or reading the Constitution according to its
supposed original meaning.)

If the Heller court had simply said, "Look, most Americans
think the Amendment is about an individual right, and no one
really cares what James Madison or the average man on the
street in 1791 thought" -  then the case would be pretty
uncontroversial. Instead, Scalia produced a pompous, error-
filled opinion that has done more to discredit his beloved
originalism than a generation of liberal academics ever
could.

Even leading conservative legal scholars have harshly
criticized the ruling: federal judge Richard Posner said
most professional historians reject Scalia's historical
analysis in the case, and described Scalia's jurisprudence
as "incoherent". Perhaps even more damning, J. Harvie
Wilkinson, a federal judge appointed by Ronald Reagan,
compared Heller to Roe v. Wade.

Of course, the fact that the Second Amendment is now treated
as an individual right has almost no bearing on gun
regulation, because no right is absolute. You can't shout
"Fire!" in a crowded theater, nor can you fire a gun in one.

And most Americans -  including those who own guns -  are
open to reasonable gun regulation. The only people who
oppose such policies are the NRA, extreme gun-rights
advocates, and the craven politicians who do their bidding.

But what would such regulation look like?

For one thing, we could have a comprehensive system of
firearm licensing and registration. At the moment we have
none (even though it is hard to fathom how one might ever
muster a militia without such a system). To avoid the
irrational fears of gun confiscation, such a system ought to
be instituted by the states, which maintained militias long
before the Second Amendment existed. Could anyone with even
a minimal understanding of the history of the Second
Amendment seriously maintain that  a state-based system
violated the Amendment's text or spirit?

The bottom line is that although we hear the Second
Amendment invoked all the time, few of those who trumpet it
the most vehemently realize that restoring the Founders'
vision of the Second Amendment would be a call for more gun
regulation, not less.

[Saul Cornell is the Paul and Diane Guenther Chair in
American History at Fordham University.]

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