By Stephen Tuttle | Dec. 11, 2021
Supreme Court watchers are now predicting another expansion of gun owners’ rights, an interpretation of the Second Amendment its authors never imagined.
New York State Rifle and Pistol Association v. Bruen could give New York residents the
right to carry a concealed weapon almost anywhere, at any time, without the bothersome necessity of a permit. It would eliminate the need to even apply for such a permit, essentially ending concealed weapon regulations in New York and perhaps elsewhere.
The Court endorsed individual gun rights in 2008 when the District of Columbia v. Heller overturned most of the District's handgun rules. Writing for the 5–4 majority in the Heller decision, Justice Antonin Scalia said their opinion would return the Second Amendment to its “original understanding” and that the “inherent right to self-defense” was the “central component” of the amendment; not a well-regulated militia.
Scalia either misunderstood what the framers intended or simply assigned his personal interpretation to the Second Amendment's authors. While several of the Founders espoused the value of gun ownership by private citizens — and are often quoted by gun rights advocates today — those comments were not uttered within the context of the need for the Second Amendment. In fact, those discussions rarely mentioned self-defense at all.
The concerns of the Founders were not focused on individuals; they wanted a citizen militia at the ready, not a standing army, which they believed was anathema
to liberty. They feared a standing army could be used to oppress citizens or to engage in foreign adventures. They would now likely think both fears had been realized.
Alexander Hamilton said, “ ... a well regulated militia is the most natural defense of a free country.” George Washington was equally adamant about a citizen militia and supported private gun ownership for that purpose alone. He said a well-regulated citizen militia, “ ... have ever been considered as the bulwark of a free people.” Washington was a firm enough believer in a citizen militia that he almost totally disbanded the Continental Army as soon as the Treaty of Paris was signed in 1783, ending the Revolutionary War.
Private gun ownership for any reason was rarer than we've been taught. Though no precise records exist, examination of probate records from the time would indicate no more than 20 percent of households had guns. Most colonists were not hunters but farmers who also raised livestock. Person-to-person violent crime was rare enough no one was clamoring to own a better self-defense weapon. Plus, guns at the time were unusually expensive, notoriously inaccurate, and required that some parts be imported from Europe.
The authors of the Second Amendment never intended everyone have a gun. They certainly did not want their slaves — yes, nearly all of them owned slaves — or free Blacks or indigenous Americans to own guns. The scarcity of guns in private hands was sufficient enough that in 1792 the federal government passed legislation requiring all “able-bodied” men to purchase a gun and ammunition and to attend musters for practice. All of those guns were registered.
Gun laws and restrictions were common and unchallenged. Most states had a long list of places where guns were not allowed. By the middle of the 19th Century, entire communities simply banned weapons. Some of the most notorious towns of the old West, with their reputations for nearly daily gunfights, had no such thing; Tombstone, Deadwood, and Dodge City all required anyone entering town to turn in their guns.
If the Supreme Court further expands individual gun rights, as seems to be their wont, they can't rely on the intent of the authors of the Second Amendment. Their primary interest was creating a well-regulated citizen militia, not creating a country awash in guns used for personal reasons, as is the case today. According to the annual Small Arms Survey, we have 393 million guns resting somewhat uncomfortably in 44 percent of American households.
Here in Michigan, we're revisiting the gun rights debate after the Oxford Township school shooting. We're pretending to be shocked but how can we be? According to the Gun Violence Archive, that was the 29th mass shooting at a school this year, a tiny part of the 651 mass shootings so far in 2021. (The Gun Violence Archive counts a “mass shooting” as any that wound or kill at least four victims in the same place at the same time. The FBI definition requires four fatalities; not just victims.
So, we're once again discussing potential laws that either won't pass or won't pass with teeth. Michigan and 21 other states don't even require guns be safely secured in the presence of children. Maybe we'll change that but probably not.
We'll go about our business and proclaim the Second Amendment sacrosanct and any gun regulation a violation. This, we'll say, is what the Founders wanted. No, they didn't.