Sunday, August 14, 2011

The Fascinating History of Gun Control

Adam Winkler has produced an outstanding article detailing the history of gun control in the US. It appears in the Atlantic with the title: The Secret History of Guns. Winkler’s tale is loaded with insights and interesting history.

He begins by reminding us what the Founding Fathers left us to work with:

“The text of the Second Amendment is maddeningly ambiguous. It merely says, “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.” Yet to each side in the gun debate, those words are absolutely clear.”

He then points out that there is clear evidence as to what these Founding Fathers thought was appropriate action.

“A 1792 federal law mandated every eligible man to purchase a military-style gun and ammunition for his service in the citizen militia. Such men had to report for frequent musters—where their guns would be inspected and, yes, registered on public rolls.”

While today judges proclaim a mandate to require the purchase of health insurance is unconstitutional, the people who wrote the Constitution seem to have had no problem with a mandate requiring the purchase of guns. Report back when you figure that one out.

If you are on the side of gun control and wish to interpret this law as indicating that service in a militia was the guiding principle, not gun ownership itself, Winkler provides us with another reminder from the past.

After the Civil War, the Southern states enacted a number of laws that could prohibit freed slaves from owning firearms. This prohibition was enforced by both legal and illegal means. It became clear that the possession of weapons was necessary for blacks in the South for self protection. This need led to the passage of the Fourteenth Amendment to the Constitution.

“Whether or not the Founding Fathers thought the Second Amendment was primarily about state militias, the men behind the Fourteenth Amendment—America’s most sacred and significant civil-rights law—clearly believed that the right of individuals to have guns for self-defense was an essential element of citizenship. As the Yale law professor Akhil Reed Amar has observed, ‘Between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman’.”

This bit of insight would seem to make clear what the Constitution intended.

Winkler narrates how the role of the NRA evolved over time.

“Today, the NRA is the unquestioned leader in the fight against gun control. Yet the organization didn’t always oppose gun regulation. Founded in 1871 by George Wingate and William Church—the latter a former reporter for a newspaper now known for hostility to gun rights, The New York Times—the group first set out to improve American soldiers’ marksmanship. Wingate and Church had fought for the North in the Civil War and been shocked by the poor shooting skills of city-bred Union soldiers.”

For most of its existence the NRA supported gun control regulations that were consistent with what would be considered reasonable today by most control advocates. The wave of assassinations and the rise of aggressive groups like the Black Panthers led to gun control legislation in the late 1960s that the NRA leadership could grudgingly live with. Unfortunately, the NRA membership was headed in another direction. The purchase of guns began to be dominated by the perceived need for self defense.

Winkler tells us that two most unlikely groups became the greatest proponents of the right to bear arms, partly fueled by fear of each other, and partly by mutual distrust of government authority.

”The new NRA was not only responding to the wave of gun-control laws enacted to disarm black radicals; it also shared some of the Panthers’ views about firearms. Both groups valued guns primarily as a means of self-defense. Both thought people had a right to carry guns in public places, where a person was easily victimized, and not just in the privacy of the home. They also shared a profound mistrust of law enforcement.”

The trend has certainly drifted in the direction of less restriction on gun ownership and gun possession, but Winkler reminds us that things might not have drifted as far as we might suspect. In 2008, in District of Columbia v. Heller, the Supreme Court affirmed the Second Amendment as providing an individual with the right to possess a gun. A number of provisions in the DC law were declared unconstitutional. Gun control advocates feared that all was lost, and gun rights advocates assumed that all had been won.

“So far, at least, neither side’s predictions have come true. The courts have been inundated with lawsuits challenging nearly every type of gun regulation; in the three years since the Supreme Court’s decision, lower courts have issued more than 200 rulings on the constitutionality of gun control. In a disappointment to the gun-rights community, nearly all laws have been upheld.

The lower courts consistently point to one paragraph in particular from the Heller decision. Nothing in the opinion, Scalia wrote, should”

be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

“This paragraph from the pen of Justice Scalia, the foremost proponent of constitutional originalism, was astounding. True, the Founders imposed gun control, but they had no laws resembling Scalia’s list of Second Amendment exceptions. They had no laws banning guns in sensitive places, or laws prohibiting the mentally ill from possessing guns, or laws requiring commercial gun dealers to be licensed. Such restrictions are products of the 20th century. Justice Scalia, in other words, embraced a living Constitution.”

History provides such exquisite contradictions.

Check out Winkler’s article. It is a great read.

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