Founding Fantasies vs. Historical Realities in the Second Amendment Debate
[This is a guest post that is part of a mini-series on the history of firearms and gun regulation in early America.]
The modern debate over the Second Amendment is premised on a perfect storm of historical error. It would be tempting to conclude that historical reality is irrelevant to modern Second Amendment jurisprudence given the trio of decisions by the Supreme Court in Heller, McDonald, and Bruen. Indeed, many prominent originalists have erroneously proclaimed that historical truth and originalist truth are simply different and incompatible. If this claim were correct, then originalism would turn out to be just another version of living constitutionalism, albeit one dressed up in a wash-and-wear set of polyester britches and stockings. If originalism has any legal currency and purchase it must get the history right. To be sure, not all history enjoys the same relevance or explanatory power in modern constitutional law, a point that originalists Stephen Sachs and William Baude have persuasively suggested. This claim must be distinguished from the alternative argument made by other originalists, most notably Lawrence Solum, Randy Barnett, Gary Lawson, John McGinnis, and Mike Rappaport, who argue that historical truth, the verifiable claims subjected to rigorous analysis using accepted historical methods, is not relevant to originalism. The ahistorical variants of originalist theory fail to grasp a few basic methodological and epistemological principles of historical inquiry. In a short blog post, it would be impossible to survey all the errors that have crept into Second Amendment scholarship and jurisprudence because of the failure to get the history right, but here is a sampling of the most important points of confusion and falsehood that recent historical scholarship has debunked.
Although nineteenth century courts claimed that the Founders saw themselves as simply protecting a pre-existing English right, leading commentators in the Founding era, including James Madison and St. George Tucker, did not share this view. Members of the Founding generation recognized that the English Declaration of Right offered anemic protection for the right to keep and bear arms. As historian Tim Harris has forcefully demonstrated, the arms-bearing provision of the English Declaration of Right was better understood as reiterating Parliament’s plenary power to regulate arms, not a modern-style rights claim against legislative interference in gun ownership or use (for more detail, see Harris’ 2019 essay in the edited collection A Right to Bear Arms?).
Individual self-defense and gun violence, the interconnected issues that hover over the modern gun debate, were simply not a problem for those who enacted the Second Amendment. Historian Randy Roth’s work on homicide (specifically, Roth’s 2009 book American Homicide) is critical in this regard. Guns were not the weapon of choice for those with evil intent in the Founding era. Black powder, muzzle-loading weapons were too unreliable and took too long to load to make them effective tools of homicide. Given this fact it is easy to understand why discussions of guns and individual self-defense were so rare in Founding era public debate. Different fears and concerns shaped Founding era debates over the right to keep and bear arms.
Modern gun rights ideology has inverted Founding era thought. Today, gun rights advocates claim individual gun ownership is the foundation for the right to bear arms and makes it possible to have an armed population. In the Founding era the opposite was the case. The need for an armed population meant that individual gun ownership had to be encouraged and this created an additional self-defense dividend for Americans who were free to use these weapons for any lawful purpose, including self-defense.
Justice Scalia’s Heller opinion trashed U.S. v. Miller, the controlling precedent from the New Deal era, but rescued one of its most problematic claims from the dust pile of history. In Heller, Scalia erroneously claimed, without offering any convincing Founding era evidence, that all guns in common use were protected by the Second Amendment. This is the opposite of the historical reality that governed arms regulation and policy in the Founding era. As the work of historian Kevin Sweeney demonstrates, Americans were far better armed than their English brethren, but the guns Americans desired were not the heavy military-quality muskets required for eighteenth century ground warfare, but lighter hunting muskets and fowling pieces (for more detail, see Sweeney’s article in the 2013 edited collection The Second Amendment on Trial). In marked contrast to today, government policy in the era of the Second Amendment aimed to encourage Americans to acquire weapons they did not desire, not discourage them from purchasing guns they did desire. Given this fact, almost any effort to draw analogies between Founding law and modern regulation is bound to distort the past it seeks to understand. Thus, militia statutes, one of the most frequently cited sources in modern adjudication were not evidence of a modern-style rights claim, but were legal obligations imposed on individual households, an effort to transfer the cost of public defense to the people themselves. The many state law provisions that gave heightened protection for militia arms, but not the other guns most typically owned by Americans, further demonstrate that not all guns were created equal under state and federal rights to keep and bear arms. In most states (but not all), only the former, not the latter, were exempt from seizure in debt proceedings or payment of tax arrears. To paraphrase Bruen, statutes that treated all guns equally were outliers.
The disarmament statutes enacted by Founding era states have also been misinterpreted by jurists and scholars writing about the Second Amendment. The Founders disarmed a variety of groups and individuals who were perceived to be dangerous, including slaves, Indians, loyalists, and insurgents in uprisings such as Shays’s Rebellion. Yet, dangerousness was hardly the only reason that justified disarmament in this time. Indeed, the disarmament of Quakers, Moravians, and Mennonites had little to do with their dangerousness. These groups were among the most law-abiding and peaceful communities in eighteenth century America.
Two interconnected issues are central to understanding why these religious groups were disarmed: republicanism and social contract theory, two Founding era conceptual frameworks that have been ignored or misunderstood by many Second Amendment scholars and judges deciding post-Bruen cases. There was broad agreement among the Founding generation that individuals were expected to sacrifice a portion of their natural rights, including the unlimited right of self-defense enjoyed in the state of nature, to secure the advantages of civil society and the rule of law. This meant that individuals were expected to contribute to public defense by participating in the militia, paying taxes for public defense, or hiring substitutes to serve in their place if they were religiously scrupulous about bearing arms.
The religious groups disarmed by Founding era law were not anti-gun; the members of these groups commonly owned firearms and used them for a variety of lawful purposes. But none of these sects could bear arms without running afoul of their religious beliefs. Bearing a gun and bearing arms were two distinct activities in the minds of most Americans in the Founding era, a fact made evident in critiques of Heller that have appeared since the case was decided. (The new scholarship used the methods of corpus linguistics.)
It is difficult to translate the complex beliefs of Quakers, Moravians, and Mennonites regarding arms bearing in terms that fit the modern categories that define the current debate over the Second Amendment. One historical point is beyond dispute: Founding era disarmament statutes extended well beyond dangerousness. The Quaker example illustrates this indisputable fact: Friends in Pennsylvania were disarmed for not paying taxes and failing to meet the most basic obligations of republican citizenship, not because they were violent or dangerous. If something akin to tax evasion was a legitimate reason to disarm individuals in the Founding era, then the answer to the hypothetical question, “Can Martha Stewart and other non-violent criminals today be disarmed without any constitutional obstacle?” is simple and straightforward: yes.
One of the biggest confusions in current Second Amendment scholarship and jurisprudence stems from a failure to grapple with common law constraints on arms. In contrast to modern originalist scholars and judges, Americans in the Founding era were steeped in common law modes of reasoning. Nothing was more central to this mode of legal reasoning than the preservation of “the peace.” In Bruen, Justice Thomas treated surety laws, a tool inherited from common law, as if they functioned as de facto permit schemes for carrying arms. According to Justice Thomas, one could carry a gun unless an individual came forward and demonstrated that one posed a specified threat (the opposite of the way these laws functioned in practice). Compounding his error, Thomas claimed that, once bound to the peace, one could continue to carry a gun as long as one did not threaten anyone. It is worth recalling that peace bonds and good-behavior bonds were imposed on those engaged in other types of criminal conduct, including “whore mongering.” If Justice Thomas were correct about sureties, then he has discovered a novel right, a license to fornicate. That is a curious claim, and one that seems hard to reconcile with the available evidence from the period or existing scholarship.
The errors that have crept into Second Amendment scholarship and the Supreme Court’s trio of gun rights decisions have left lower courts scrambling to apply rules derived from a version of the past that never existed. The current chaos in Second Amendment jurisprudence is a direct result of the Supreme Court’s inability to distinguish between historical fact and fantasy. The time has come to correct these errors and fashion a coherent Second Amendment jurisprudence, one rooted in the real text, history, and tradition, but not bound to the past in an unthinking fashion. Binding modern Americans to a version of the past that never existed has no foundation in history, text, or tradition. Nor can one justify treating the police power of legislative bodies as expiring at some distinct moment in the past, either 1791 or 1868. The right to regulate is as much an inheritance of the Founding era as the right to keep and bear arms.