Gun Ownership and Regulation at the Birth of Our Nation

The Constitution provides little direct guidance on the issues related to gun ownership and gun restrictions, and what it does provide has been perplexing to subsequent generations of citizens. The Second Amendment is rather terse:
"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."

Taken alone, this statement could be understood as being focused on "well-regulated militias;" or it could be focused on the rights of the citizens to bear arms. For many years, the Supreme Court supported the former view. It wasn’t until 2008, in District of Columbia v. Heller, that the Court finally concluded that gun ownership by individuals is protected by the Second Amendment.

Adam Winkler has produced a fascinating review of the legal wrangling leading up to that 2008 decision. In the process he also provides the historical background required to understand the thoughts that might have been motivating our founding generation. Winkler is convincing in leading the reader to conclude that the right to bear arms was so obvious to the writers of the Constitution that it should have been beyond question. Winkler is equally convincing in making the case that placing restrictions on gun ownership in order to further the common good was also obviously assumed as a function of the government. Winkler’s book is titled Gunfight: The Battle Over the Right to Bear Arms in America.

The writers of the Constitution were of English descent. It is only natural that their view of personal rights would borrow heavily from those established in England.

"William Blackstone, the eighteenth-century jurist whose Commentaries on the Laws of England are still cited today as the authoritative account of old English law, described the English Bill of Rights as recognizing ‘the right of having and using guns for self-preservation and defense.’ The right to have arms, he said, was an ‘auxiliary’ right necessary to preserve the basic rights of man: ‘personal security, personal liberty, and private property.’ English court cases from the 1700s were in accord. Judges, like those in the 1744 case of Malloch v. Eastly, repeatedly recognized that it was ‘settled and determined’ law that ‘a man may keep a gun for the defense of his house and family’."

The occasion for the cementing of this right in the English Bill of Rights was the attempt by a Catholic king to confiscate the arms of potentially troublemaking Protestants. That king lost his job as a result.

Now consider what happened a century later when another English king tried to contain dissent in his American colonies by limiting access to firearms.

"In 1774, King George III ordered the cessation of all exports of firearms and ammunition to the colonies. The next year, he ordered British commanders to disarm certain provinces, especially in the north...."

"The American colonist had no standing army of their own, but had for decades formed militias composed of ordinary men to fight the Indians. These militias relied on the privately owned guns of the men called out to serve, in addition to stockpiled guns and gunpowder put away for times of need. The British began seizing these stockpiles to make it harder for the colonies to rebel—a move that only inspired the colonists to see to it that George III’s reign over them ended quickly."

It was an attempt by the British to confiscate arms being stockpiled in Concord that led to the confrontation that initiated the Revolution.

"It was the start of the American Revolution—a war ignited by a government effort to seize the people’s firearms."

After the successful revolution, the dependence on hastily formed militias was no longer sufficient. The response was not only to allow anyone to possess a gun, but to demand that they possess a gun. This was a mandate to purchase a commercial product no less. These guns had to be registered, kept in working order, and they were subject to confiscation by the government if necessary for the public good.

"With national defense becoming too important to leave to individual choice or the free market, the founders implemented laws that required all free men between the ages of eighteen and forty-five to outfit themselves with a musket, rifle, or other firearm suitable for military service....Every man of military age was legally mandated to acquire a militarily useful gun. This mandate was enforced at ‘musters,’ public gatherings held several times a year where every person eligible for militia service was required to attend, military gun in hand. At the musters, government officials would inspect people’s guns and account for the firearms on public roles—an early version of gun registration."

"If the government decided that a privately owned gun was needed, the founding fathers used a temporary form of gun confiscation known as ‘impressment’ to seize the gun from its owner. Ten of the thirteen colonies impressed privately owned firearms for the war effort against England."

Winkler tells us that at the time it was also assumed that privately owned guns would be available so the citizens could participate in combating crime.

"Not only did the founders lack a standing army; they also had no organized police departments. For decades after the Revolution, when crimes were committed, ordinary individuals were expected to respond to the ‘hue and cry,’ armed if necessary, and bring criminals to justice."

If there is yet any doubt that the right to bear arms was deeply imbedded in the psyche and structure of the nation when it was formed, Winkler provides this additional insight.

"Each of the fifty states has its own constitution that guarantees the fundamental rights of its citizens. Forty-three of the fifty state constitutions contain language that clearly and unambiguously protects the right of individuals to own guns. Several of these provisions date back to the founding....As the state courts have recognized since the early 1800s, such provisions directly protect the right of individuals to own guns for self-defense."

Winkler spends a comparable amount of his book detailing how gun restrictions have always been a part of our society.

"The right to bear arms in the colonial era was not a libertarian license to do whatever a person wanted with a gun. When public safety demanded that gun owners do something, the government was recognized to have the authority to make them do it."

Selective disarmament was recognized as within the government’s purview as blacks, free or slave, and people of mixed race were considered too dangerous to allow them to possess guns. And for a while in Maryland there was a law that barred Catholics from possessing guns.

An example more relevant to our times comes from Boston. City government was sufficiently concerned about fire hazards that they passed a law in 1783 fining anyone who kept or brought a loaded firearm into a building within the city.

"Yet there is no record of anyone’s complaining that this law infringed the people’s right to keep and bear arms. Even though the inspiration for this law was prevention of fires, not, say, protecting children from accidental shootings, the lesson remains the same: pressing safety concerns led Bostonians to effectively ban loaded weapons from any building in the city."

And finally, Winkler provides this conclusion:

"The founding fathers had numerous gun control laws that responded to the public safety needs of their era. 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 that the founders endorsed."

The history of guns in our nation is misunderstood by both sides in the arguments over rights versus regulations. Winkler’s book should help clear up many misunderstandings.

Winkler’s history of how gun regulation has evolved over time is an interesting story also. It will, perhaps, be described in a subsequent article.