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History of the Second Amendment

by Alex Guanga (12/11/2017)



TABLE OF CONTENTS


Introduction

Second Amendment Terms


Timeline of Court Cases

United States v. Cruikshank (1876)

The United States v. Miller (1939)

District of Columbia v. Heller (2008)

McDonald v. Chicago (2010)


NRA

NRA and Regulation

NRA Internal Disagreements

The NRA and the Second Amendment


NRA Influences

Public Opinion

Academic

Politics


Conclusion



Introduction


Ratified in 1871, the Second Amendment states,


  • “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.” [1]


James Madison (https://en.wikipedia.org/wiki/James_Madison)


James Madison, known as the “Father of the Constitution,” proposed the Second Amendment and believed that a country thrives with a central government.[2] Not everyone agreed with Madison’s beliefs. In the 18th century, after the tyrannous rule of England, many Americans distrusted the federal government.[3] Hence, the anti-federalist opposed a central government. The Second Amendment was a compromise between the anti-federalist and federalist factions. In “The Second Amendment,” author Michael Waldman researched the creation of the Bill of Rights and found that the Second Amendment was among the least debated provisions by Congress. He writes, “Twelve congressmen joined the debate. None mentioned a private right to bear arms for self-defense, hunting, or for any purpose other than joining the militia.” [4]



What an 18th century would have looked like (https://angrystaffofficer.com/2017/03/20/a-short-history-of-the-militia-in-the-united-states/)


Second Amendment Terms

Confusion from the Second Amendment stems from understanding the intent of the Founding Father. For example, the term 'Militia,' is often debated. However, Madison's original proposal of the Second Amendment can shed some clarity on its meaning. Madison states,


“The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” [5]


Madison’s original draft defines a ‘well-regulated militia’ as people who render in military service. However, pro-gun advocates have argued against this interpretation of the Second Amendment. For example, the late Bob Owens wrote a lengthy response; “It is quite clear that the Founders used the phrase “well-regulated” to denote that militia forces should be skilled with arms of contemporary military utility and relevant military tactics, so that they can serve in the defense of Republic against both foreign invaders and the threat of domestic tyrants commanding a national army against the liberty of the citizenry.” [6] But if we read the rest of the Second Amendment, it gives us clues on its meaning. For example, former New York Times reporter's William Glaberson said, “Records of debates in the Continental and U.S. Congresses between 1774 and 1821 [include] 30 uses of the phrase ''bear arms'' or ''bearing arms'' (other than in discussing the proposed Second Amendment); in every single one of these uses, the phrase has an unambiguously military meaning.” [7] According to Patrick Henry, an American attorney, the concept of bearing arms has had a direct connection with the security of the State. He states,


“by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?'' [8]


Timeline of Court Cases



Image of the Colfax Massacre (https://www.smithsonianmag.com/smart-news/1873-colfax-massacre-crippled-reconstruction-180958746/)


United States v. Cruikshank (1876):

  • Approximately 150 people died in The Colfax Massacre. [9] The Colfax Massacre was an incident where a mob of white insurgents, led an assault on black citizens who were determined to safeguard the results of the state's most recent election. [10]


Nearly 150 Black Americans died in the mass murder at the hands of white insurgents

(https://64parishes.org/entry/colfax-massacre)

  • The black freedmen brought federal charges against three white men under The Enforcement Act of 1870 which prohibited two or more people from attempting to deny others their constitutional rights. [11] The white rebels appealed their convictions.

  • The Supreme Court overturned the convictions and ruled, “The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone.” [12]

  • The Supreme Court continued, "For their protection in its enjoyment the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.” [13] The court claimed the Second Amendment was only applicable to the National Government and not to States or individuals.

  • The Court ruled, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.” [14]

  • Meaning, the right to bear arms is neither granted nor revoked by the Constitution.

Presser v. Illinois (1886):

  • Herman Presser was a member of the citizen militia group, the Lehr und Wehr Verein, that was associated with the Socialist Labor Party. [15]

Lehr and Wehr Verein poster

(http://www.chicagohistoryresources.org/dramas/prologue/theLinesAreDrawn/cultureAndPolitics_f.htm)


  • The City of Chicago stated, “an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the Governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the State of Illinois, or the troops of the United States.” [16]

  • Presser argued that this was a violation of his Second Amendment.

  • The Supreme Court stated, “But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state.” [17]

  • The Supreme Court ruled “which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.” [18]

  • The ruling was consistent with the United States v. Cruikshank that the Second Amendment is applicable to the national government but not states and thus can not be regulated by the States. These two cases are heavily used to advocate for gun-regulation.


Jack Miller of US v. Miller


The United States v. Miller (1939)

  • In 1934, the National Firearms Act (NFA), was enacted and stated that “the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms.” [19]


  • Jack Miller and Frank Layton were charged with violating the NFA because they transported an unregistered sawed-off double-barrel 12-gauge shotgun across states. [20]


A sawed-off double-barrel 12-gauge shotgun (http://www.thespecialistsltd.com/replica-sawed-steven-311)

  • Both felt that the NFA was a violation of their Second Amendment rights to bear arms. [21]

  • The Court stated, “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

  • The Court stated, “In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

  • The Court ruled that guns usable in military service and held for military service purposes were protected by the Second Amendment. Moreover, the Second Amendment was interpreted under the collective-right theory rather than the individual-right theory.

District of Columbia v. Heller (2008)

  • Dick Anthony Heller, a D.C. special police officer, got denied a one-year handgun license.


Dick Anthony Heller

(https://www.theatlantic.com/politics/archive/2016/10/trump-clinton-debate-supreme-court/504878/)

  • Thus, Heller filed a suit in the Federal District Court for the District of Columbia that the licensing requirement and its requirement of trigger-locks for lawful guns in the home was a violation of his Second Amendment rights.

A trigger lock is an extra safety measure for guns in the home

(https://fsdcinc.com/product/combination-trigger-gun-lock-2/)

  • This Court overruled the United States v. Miller, which believed in the ‘collective-right’ theory, unlike this Court’s majority which believed in the ‘individual-right’ theory.

  • The final ruling was a 5–4 decision that stated, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” [22]

  • The Court changed it’s understanding of a “well-regulated militia” to, “The “militia” comprised all males physically capable of acting in concert for the common defense.” [23]

  • This was a different interpretation of the Second Amendment. There was a change from the collective right theory to individual right theory.

  • But this Court was divided, and Justice Steven stated, "No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons.” [24]

  • However, the Court was vague in determining whether this applied to States only confined to the District of Columbia, which is under federal jurisdiction.

McDonald v. Chicago (2010)

  • Similar to the District of Columbia v. Heller case, three plaintiffs argued that the registration of handguns was unconstitutional under the Second Amendment.

Otis McDonald


  • Other than the Second Amendment, the Fourteenth Amendment was put into question. The 14th amendment states, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [25]

  • In the Court case, Justice Alito stated, “It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” [26]


NRA

During the 68-year span of no changes with the Second Amendment, the court has recently changed their position. One of the startling facts about the NRA is their take on gun regulation. The NRA promotes the axiom that people have the right to keep and bear arms. However, the NRA’s agenda differs from their current one. Founded by Union Civil War veterans in 1871, one of them was a New York Times reporter. Their motto was “Firearms Safety Education, Marksmanship Training, Shooting for Recreation.” [27]



NRA logo

https://en.wikipedia.org/wiki/National_Rifle_Association


NRA and Regulation

As mentioned, the NRA does not advocate for gun-regulation. However, before the 1960s, the NRA voiced for the importance of gun regulation.

  • The 1920s: The National Revolver Association, a branch of the NRA, advocated for tougher gun-regulation after the emergence of ‘city gangsters’ use of automatic weapons.

  • The 1920s: NRA President Karl T. Frederick, said: “I have never believed in the general practice of carrying weapons.” The National Revolver Association proposed, “requiring a permit to carry a concealed weapon, adding five years to a prison sentence if a gun was used in a crime, and banning non-citizens from buying a handgun.” [28]

  • 1934/1938: The NRA helped draft the 1934 National Firearms Act and 1938 Gun Control Act.

The assassination of JFK influenced even NRA members to support greater gun control


  • 1963: After the murder of President John F. Kennedy, NRA Executive Vice-President Franklin Orth said “We do think that any sane American, who calls himself an American, can object to placing into this bill the instrument which killed the president of the United States”, and subsequently supported a ban in mail-order sales. [29]

  • 1968: The Gun Control Act of 1968 passed after the assassinations of Martin Luther King Jr. and Robert F. Kennedy. Despite some pushback from the NRA, Orth said “... the measure as a whole appears to be one that the sportsmen of America can live with.” [30]

  • 1986: The Gun Control Act of 1968 was legislated with the purpose to, “keeping firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetence.” The NRA lobbied for the Firearms Owners Protections Plan of 1986. President Reagan passed the legislation overturning some restrictions.[31]

NRA Internal Disagreements


The NRA and ATF have, in the past, been at odds


There was internal disagreement within the NRA. In 1971, when the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives raided an NRA member house which

ignited fear in some of the NRA members that gun owners were being harassed. In 1976, the NRA dismissed around 80 people who believed in fewer gun restrictions. However, Harlon Carter and his counterparts who believed in fewer restrictions took over the NRA during the 1976 Cincinnati Revolt. Their slogan changed to “The Right Of The People To Keep And Bear Arms Shall Not Be Infringed.”


The NRA and the Second Amendment

Thus, after the Cincinnati Revolt, their agenda to change the Second Amendment was intact. Members within the NRA felt that the organization was not understanding the Second Amendment correctly. Moreover, after the government got tougher on gun-regulation, the group that took over the NRA began implementing different methods to push against these regulations.

NRA Influences

Public Opinion

The public's conception of gun rights was influenced by the NRA, which in effect helped advocate the NRA interpretation of the Second Amendment. According to Vox, during the Vietnam War, they voiced the belief that the government should not be trusted and thus, the people should protect themselves. Moreover, the NRA's efficient tactics emphasized the association between guns and freedom.


Party divides in NRA favorability


German Lopez, a writer at Vox, wrote, “it elevated guns and related issues into a cultural and political identity that went beyond the legal technicalities of gun control.” [32] Gallup, an American research-based consulting company, conducted surveys on people's opinion on gun control. In 1959, 60% of American agreed that the law should ban handguns except for authorized persons. [33] There has been a downward trend. In 2000, 36% of Americans agreed that handguns should be banned, except for authorized figures. The percentage decreased further in 2017 to 28 percent.


NRA favorability is on a downward trend

https://tinyurl.com/yynct42a


The left has fought against the influence of the NRA. The movement has been successful in shedding the failure of the NRA. But there are differences amongst both sides. Republican strategist Grover Norquist said, “The question is intensity versus preference. You can always get a certain percentage to say they are in favor of some gun controls. But are they going to vote on their ‘control’ position?” Thus, the argument is on the passion for these arguments. For example, Kristin Goss, author of “The Gun Debate: What Everyone Needs to Know”, argues that the pro-gun advocates view their loss gun as their loss of freedom. He continues, “are motivated by more abstract notions of reducing gun violence.” [34]


Academic

Academia was also influenced by and influenced the NRA. For example, the rise of law journal articles promoting gun rights helped add legitimacy. The NRA has long advocated the ‘individual right’ theory. However, this wasn’t a popular theme in law journals before 1970, when only three article on ‘individual right’ theory were published. However, from 1970 - 1989, articles on ‘individual right’ theory rose to 27. Much of this rise was because of lawyers who were employed or endorsed by the NRA. [35] The ‘individual right’ theory gained even more recognition after law-school professor Sanford Levinson, a liberal scholar, published “The Embarrassing Second Amendment” which suggested,


“... sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even ‘winning,’ interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.” [36]


Sanford Levinson


Unsurprisingly, the NRA thus benefited from law journal articles. Their influence continued by funding “the Academics for the Second Amendment.” Carl T. Bogus, a researcher at the Roger Williams University School of Law, said, “At least fifty-eight law review articles endorsing the individual right view would be published during the 1990s.” [37] Then in 2003, the NRA decided to “endow the Patrick Henry professorship in constitutional law and the Second Amendment at George Mason University Law School.” [38]


Politics


Given the NRA’s influence, politicians seemed to benefit from endorsements from large organized groups. The influence of the NRA should be apparent on former President Ronald Reagan. During Ronald Reagan’s time as Governor of California, in response to the Black Panther Movement explicitly carrying weapons, passed the Mulford Act.


Ronald Reagan changed his thoughts on gun control with his NRA endorsement


The Mulford Act “banned open carry based on the armed patrols.” [39] But Ronald Reagan position changed. During the 1980 election, the NRA decided to endorse Ronald Reagan. He went from statements like, “no reason why, on the street today, a citizen should be carrying loaded weapons” to statements like, “The Second Amendment is clear, or ought to be. It appears to leave little if any leeway for the gun control advocate.” [40]


Donald Trump has benefitted from NRA endorsement


The NRA has endorsed Republican presidential candidates, the latest being Donald Trump. Unlike former GOP nominees Mitt Romney and John McCain who were endorsed by the NRA 1 month before Election Day, Donald Trump was endorsed 6 months before the election. Donald Trump’s rhetoric on guns aligns with the NRA. The NRA and President Trump advocate for fewer gun-regulation. After the Paris shooting in 2015, he said, “I promise there wouldn’t have been 130 people killed and hundreds of people lying in the hospital to this day.” [41]


Conclusion

Recently, the Second Amendment's interpretation has changed. Much of this is because of the NRA, which influenced the public, education, and private sector. Their influence has been acknowledged by conservative U.S. Supreme Court Chief Justice Warren Burger. He said that the NRA was “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.”


Given the long track of the Second Amendment and the Supreme Court, the interpretation of the Second Amendment has been acknowledging that the State's have the right to regulate guns. In the 20th Century, the NRA believed that guns should be regulated. Hence, the NRA advocated for the 1934 National Firearms Act and 1938 Gun Control Act. Secondly, analyzing the Second Amendment through our Founding Fathers, we begin to understand the Second Amendment is not about the individual rights but the right to fight against any tyrannical rule.


Reference

1- "The Constitution of the United States," Amendment 2.

2- History.com. (2009). James Madison. [online] Available at: http://www.history.com/topics/us-presidents/james-madison [Accessed 28 Nov. 2017].

3- Brooks, C. (2013). The Second Amendment & the Right to Bear Arms. [online] Live Science. Available at: https://www.livescience.com/26485-second-amendment.html [Accessed 28 Nov. 2017].

4- Lopez, G. (2017). How the NRA resurrected the Second Amendment. [online] Vox.com. Available at: https://www.vox.com/policy-and-politics/2017/10/12/16418524/us-gun-policy-nra [Accessed 28 Nov. 2017].

5- Annals of Congress, House of Representatives, 1st Congress, 1st Session, June 8, 1789, p. 451-53, Washington, DC: Gales and Seaton, 1834.

6-Owens, B. (2014). "Well-Regulated" - Bearing Arms - Second Amendment, Well-Regulated. [online] bearingarms.com. Available at: https://bearingarms.com/bob-o/2014/06/24/well-regulated/ [Accessed 28 Nov. 2017].

7-Glaberson, W. (2000). Word for Word/The Second Amendment Debate; To Bear or Not to Bear: It Depends on How You Read History. [online] Nytimes.com. Available at: http://www.nytimes.com/2000/09/24/weekinreview/word-for-word-second-amendment-debate-bear-not-bear-it-depends-you-read-history.html [Accessed 28 Nov. 2017].

8-(Glaberson, 2000)

9- Foner, E. (2014). Reconstruction. New York, New York: HarperPerennial, p.437.

10-Louis Gates Jr., H. (2013). What Was the Colfax Massacre?. [online] Theroot.com. Available at: https://www.theroot.com/what-was-the-colfax-massacre-1790897517 [Accessed 12 Dec. 2017].

11-(Foner, 2014)

12-United States v. Cruikshank [1875]U.S. 542 92.

13-(United States v. Cruikshank, [1875])

14-(United States v. Cruikshank, [1875])

15-Sait, E. and Stimson, F. (1911). Popular Law-making: A Study of the Origin, History and Present Tendencies of Law-making by Statute. Political Science Quarterly, 26(1), p.161.

16- Presser v. Illinois [1886]U.S. 252 116.

17-(Presser v. Illinois, [1886])

18-(Presser v. Illinois, [1886])

19-Atf.gov. (2016). National Firearms Act | Bureau of Alcohol, Tobacco, Firearms and Explosives. [online] Available at: https://www.atf.gov/rules-and-regulations/national-firearms-act [Accessed 28 Nov. 2017].

20-Shmoop.com. (2008). United States v. Miller. [online] Available at: https://www.shmoop.com/right-to-bear-arms/united-states-v-miller.html [Accessed 28 Nov. 2017].

21-Oyez.org. (n.d.). United States v. Miller. [online] Available at: http://www.oyez.org/cases/1900-1940/307us174 [Accessed 28 Nov. 2017].

22-United States v. Miller [1939]U.S. 174 307.

23-(United States v. Miller, [1939])

24-Head, T. (2017). Gun Control, the Second Amendment and the Supreme Court. [online] ThoughtCo.com. Available at: https://www.thoughtco.com/second-amendment-supreme-court-cases-721399 [Accessed 28 Nov. 2017].

25-"The Constitution of the United States," Amendment 14.

26- (United States v. Miller, [1939])

27-Coleman, A. (2016). When the NRA Supported Gun Control. [online] Time.com. Available at: http://time.com/4431356/nra-gun-control-history/ [Accessed 28 Nov. 2017].

28-Frium, D. (2013). The Lost History of the NRA. [online] thedailybeast.com. Available at: https://www.thedailybeast.com/the-lost-history-of-the-nra [Accessed 28 Nov. 2017].

29-Waldman, M. (2014) The Second Amendment: A Biography (Simon and Schuster), 92.

30-(Coleman, 2016)

31-Garrett, B. (2017). How A Pro-2nd Amendment President Supported Gun Control. [online] ThoughtCo.com. Available at: https://www.thoughtco.com/gun-rights-under-president-ronald-reagan-721343 [Accessed 28 Nov. 2017].

32-(Lopez, 2017)

33-Gallup, I. (2017). Guns. [online] Gallup.com. Available at: http://news.gallup.com/poll/1645/guns.aspx [Accessed 28 Nov. 2017].

34-(Lopez, 2017)

35- Waldman, M. (2017). How the NRA Rewrote the Second Amendment. [online] POLITICO.com. Available at: https://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856 [Accessed 28 Nov. 2017].

36- Levinson, S. (1989). The Embarrassing Second Amendment. The Yale Law Journal, 99(3), p.637.

37-(Lopez, 2017)

38-(Waldman, 2017)

39-Russell, Y. (2014). The Mulford Act. [online] HuffPost.com. Available at: https://www.huffingtonpost.com/yvonna-russell/the-mulford-act_b_4624791.html [Accessed 28 Nov. 2017].

40-(Waldman, 2017)

41-Bierman, N. (2017). Trump's ardent pro-gun stance is new, but will Las Vegas force him to give ground?. [online] latimes.com. Available at: http://www.latimes.com/politics/la-na-pol-trump-guns-20171006-story.html [Accessed 28 Nov. 2017].


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