Editor’s note: This is the second of two parts.
The Second Amendment reads: “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.” Traditionally, this was seen as a barrier to the federal government running roughshod over the states, by reserving the states’ ability to arm their citizens, which would force the central government to think twice about exerting too much power. The amendment was passed soon after the adoption of the Constitution, which itself was a correction to the Articles of Confederation, which had ceded so little power to the federal government that government was having difficulty operating.
The weakness of the government was exposed by Shays’ Rebellion in Massachusetts during the winter of 1786-87; in the absence of a reliable militia or national army, Boston merchants had to fund a private volunteer army to put down the rebellion and preserve order. Gun rights advocates often use Thomas Jefferson’s famous quote, “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,” to support the notion of the people’s right to violent revolution. But this quote is from a letter in which he argues not that periodic revolution is a good thing, but rather that the U.S. system of government has forestalled the need for such revolutions, with only one revolt (Shays’) against one of the 13 state governments in 11 years. Jefferson argues that this record of stability refutes the attempts by British propagandists to paint America as an uncivilized and lawless place.
The Second Amendment was also used as an enticement for Southern support of the Constitution because it was seen as protecting Southern slave patrols, which relied on armed citizens to put down slave rebellions (which was especially important in places like South Carolina, where the slaves outnumbered white people). If the federal government were to prevent the militias from being armed, they would be much less effective in controlling the slave population. Some Southerners feared that limiting citizens’ right to carry arms would be an indirect way to undermine slavery.
In 1860, the fear of an overreaching federal government led the states in the South to secede from the Union. The election of Abraham Lincoln, from the new, anti-slavery Republican Party, led the South to believe that the federal government would begin the process of abolishing slavery, and that for them to preserve their way of life, which was based on slavery, they would need to secede. In this case, four bloody years of fighting demonstrated the power of the federal government to maintain the integrity of the Union. The Civil War is what it looks like when states arm their citizens to resist the power of the central government.
By ignoring the limiting clause in the Second Amendment, and finding an individual right to bear arms (in District of Columbia vs. Heller, 2008), the modern Supreme Court has dangerously changed its nature from one which seeks to protect state governments from being overpowered by the federal government (or lawless mobs), to one which authorizes the use of guns by individuals and undermines the rule of law. While the Supreme Court may seek to keep a distinction between the state governments’ efforts to preserve their domain against federal encroachment and an individual’s right to self-defense with a lethal weapon, many people conflate the two, and believe the Second Amendment empowers individuals to resist the encroachment of government by using arms instead of the legal system. Donald Trump exemplified this when during the campaign he suggested that if Hillary Clinton were to be elected president, “Second Amendment people” might do something about that.
The Second Amendment was not invoked much until the National Rifle Association (NRA) began to use it as a political wedge issue in the late 1970s. The Second Amendment did not protect African Americans in the South during Reconstruction, when the authorities confiscated their weapons, which made it easier for the KKK to use violence to oppress them.
Prior to the Civil War, one of the dominant themes of the Supreme Court was its willingness to let governments use “police power” to ensure public safety, which was the paramount concern; it was the primary reason for establishing government. Governments limited or banned the storage of gun powder (as a fire hazard). In contrast to their portrayal in movies, many frontier towns required that weapons be stored with the sheriff instead of being carried for personal protection. So restricting weaponry to protect the public has a long history.
There is not a long historical tradition of using the Second Amendment to arm civilians. Even arming citizens as part of a state militia to preserve the rights of states vs. the federal government can lead to a civil war. You shouldn’t pull a gun unless you’re willing to use it, so giving people guns has logical end point. Allowing individuals to use guns to resist “oppression” by the government leads to standoffs by the Bundys in Nevada in 2014, or even Micah Johnson, who killed five police officers in 2016 because he felt the police were using too much violence against Black people.
People who support the idea of armed individuals resisting the government usually assume they will agree with rebels’ motivations. But people resisting the government with arms will almost inevitably be outliers, because if their ideas were popular (and the political system worked properly), they could use peaceful means to achieve their goals. Inserting guns into a political disagreement rarely ends well. If the mob that attacked the Capitol on Jan 6, 2021, some of whom were armed, had fired their weapons, easily hundreds would have died. Individuals using weapons to resist a government they disagree with was never a goal of the Founding Fathers, and should not be one now.
Originalism, the judicial philosophy that drives the conservative majority on the Supreme Court’s reinterpretation, does not support an individual’s right to bear arms. Given that modern bullets had not yet been invented, much less automatic weapons, it is difficult to argue the Founding Fathers would have given individuals the unfettered right to own such weapons. If the court insists on that interpretation, we should repeal the amendment.
Kent James has a doctorate in History and Policy from Carnegie Mellon University and is an adjunct in the History Department at Washington & Jefferson College.