Overview: America's Gun and Violence Crisis; And: How the 2nd Amendment Got Hijacked by the NRA and Antonin Scalia
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As Burger wrote in Parade, the meaning of the phrase, “the right of the people to keep and bear arms”—which became the NRA’s motto in 1977—must be understood “by looking into the purpose, setting and objectives of the [Constitution’s] draftsmen.”
The accurate context and historical use of these terms concerns states being able to recruit armed militias if need be from citizens; it’s not about empowering citizens to freely roam with guns. “People of that day were apprehensive about the new 'monster' national government presented to them," Burger wrote, noting that the First Congress limited the size of a national army to 840 men. “The state militia—essentially a part-time citizen army, as in Switzerland today, was the only kind of ‘army’ they wanted.”
“Some have exploited these ancient concerns, blurring sporting guns—rifles, shotguns and even machine pistols—with all firearms, including what are now called ‘Saturday night specials,’” Burger wrote, referring to the NRA and that era’s most troublesome firearm. “There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to ‘concealed weapons’ are common. That we may be ‘over-regulated’ in some areas of life has never held us back from more regulations of automobiles, airplanes, motorboats and ‘concealed weapons.’”
Burger was writing when murders by handguns were a leading cause of violent deaths in America. But another retired Supreme Court Justice, John Paul Stevens, gave a speech in October 2012, making the same point. “When I joined the Court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to the use of arms that were related to military service,” he told the pro-regulation Brady Center.
What’s really intriguing are the colonial-era and 19th-century gun controls that Winkler recounts in Gunfight. In colonial times, some states, such as New Hampshire and Rhode Island, had public officials go door-to-door to catalog “gun ownership in a community.” Ten of the original 13 colonies even confiscated guns for use in the Revolutionary War; that was called “impressment.” The guns were later returned, but Americans didn’t care if owners claimed a need or right to self-protection. Militia laws in Massachusetts, for example, required all gun owners to appear annually in public with their arms—musket rifles—for government inspection and listing on a statewide gun registry.
Only certain ethnicities were allowed to own guns. Racial minorities were barred, as were Catholics in Maryland. Only people who pledged their support to the Revolutionary War were allowed to keep guns, which disarmed about 40 percent of the white population that was still loyal to England. In some cities, like Boston, there were laws on where ammunition could be stored, and having a loaded gun in public and in one’s home was illegal and could result in that gun being taken by local authorities. But these gun controls were also matched with gun rights. Other colonies, such as Pennsylvania, New Hampshire, Virginia and Vermont (the 14th state) wanted founding documents giving residents gun rights for self-defense and state militias.
“The founding fathers had numerous gun control laws that responded to the public safety needs of that era,” Winkler writes. “While our own public safety needs are different and require different responses, the basic idea that gun possession must be balanced with gun safety laws was one the founders endorsed.”
Between 1790 and 1860, 20 states joined the Union and 14 of them included the right to bear arms in their state constitutions. But those states also passed gun laws that today’s NRA would fiercely oppose. Most notable was banning concealed weapons in public. Kentucky and Louisiana did that in 1813. Indiana followed in 1820. Tennessee and Virginia followed in 1838, Alabama in 1839, and Ohio in 1859.
Historian Clayton Cramer concluded that the bans were not just to repress freed slaves after uprisings in Haiti and Louisiana, but also to stop violence among whites. Gun laws were racially neutral. “These laws were designed to diminish exactly what the Wild West would later become famous for: dueling, gunfights, violence,” Winkler wrote. “The southern culture of the time, Cramer found, dictated that when someone insulted you publicly, you challenged them to a duel."
Even more surprising, the Wild West of innumerable Hollywood western movies was not so wild after all. In most frontier towns, guns had to be surrendered to local lawmen when their owners were within city limits. Reflecting that sentiment, James Stephen Hogg, who was elected Texas governor in 1890, said the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man."
When Dodge City, Kansas, was organized in 1973, its first local law was for gun control. The fabled shootout at the OK Corral in Tombstone, Arizona in 1881 was about disarming ruffians who would not turn in their guns to the sheriff. This myth “that once there was a time when people settled their differences with guns… [is] profoundly misleading,” Winkler wrote.
By the end of the 1800s, several states that put gun rights into their constitutions also regulated or completely banned openly carrying guns. Those states included Florida, Texas and Oklahoma. “Gun control was sufficiently widespread that the Washington State Supreme Court could write in 1907, ‘Nearly all the states have enacted laws prohibiting the carrying of concealed weapons,’” Winkler wrote.
Reversing, Not Rolling Back the Clock