PIAC Gun Control Series: The History of the 2nd Amendment

By:  Jessica Colburn

The Second Amendment, while hotly debated, is not well understood because the language of the Amendment is unclear and old, specifically 227 years old. Here, we shed some light on what is meant by the language of the Second Amendment, including the phrases, “a well-regulated militia” and “the right of the people to keep and bear arms.” We will first examine the political atmosphere of eighteenth century America, and the years that lead to its colonization. We will then move on to how the Amendment was interpreted through Antebellum era, the Civil War, and the early twentieth century. Finally, we will conclude with a look at the current era.

“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.”

Colonization

Long before the Second Amendment was established, the people of England and France faced persecution. They struggled to free themselves from oppressive rulers from the fifteenth through the eighteenth centuries. People chose to leave both countries rather than face intolerant monarchs and unstable regimes. Many of those people found refuge in a young America. Colonists saw themselves as heirs to their English and French family members who fought against tyranny and persecution. They were direct descendants of the English people who resisted King James’s attempt to disarm large numbers of his subjects. [1]

This brief glimpse of history shows us the scaffolding on which the colonists built the Second Amendment. In this uncertain time, the Second Amendment was interpreted as a protection against a tyrannical government.  The colonists fled European countries with a history of persecuting and disarming civilians. The colonists watched as monarchs were overthrown and England drafted its own Bill of Rights that included the right to bear arms. In a new, vulnerable country with a wary population, the right to bear arms was viewed as something crucial to “tame the frontier” and as a bulwark against tyranny.

The Antebellum South

Eventually, that frontier was tamed, and democracy developed. This presented America with new challenges. In 1846, Nunn v. State was the first case to use the Second Amendment to strike down a gun law. In Nunn, this issue was that Nunn concealed his gun instead of carrying it openly. The Georgia Court said:

In principle there is no difference between a law prohibiting the wearing concealed arms and a   law forbidding the wearing of such as are exposed. If the former is unconstitutional, the latter must be so likewise. An act to prevent persons from wearing even concealed weapons is unconstitutional and void. [2]

The Court emphatically stated that the language used in the Second Amendment, specifically “shall not be infringed” meant “[t]he right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description. . . shall not be infringed, curtailed, or broken in upon, in the smallest degree.”[3] Even though it had been quite some time since the American Revolution, the Court  held the memories of that time closely. The Court placed emphasis on gun ownership as a right inherited by our forefathers, who were “trampled underfoot by Charles I and his two wicked sons and successors”.[4] Put another way, the right to bear arms was incredibly hard fought for and was not one to impeded lightly.

In Nunn’s America, the plantation system kept the South running, which was accomplished with slave labor. Georgia Chief Justice Joseph Henry Lumpkin, who helped decide the case, was a “champion both of slavery and of the Southern code of honor.”[5] At the time this case was before the Court, duels were a common occurrence in the South and the right to subordinate slaves was considered part of being a freeman.[6]

Openly carrying a gun was considered honorable by most in the South. It was believed that displaying a firearm reduced the potential for assassinations, and it leveled the playing field by removing the element of surprise. The case is still cited today, but many contemporary scholars question its relevance because, in 1846, it was crucial to the survival of the American economy to maintain plantations’ success. If American slave owners were not armed, they were not as prepared to keep their slaves under control and working. If their slaves were not kept at work consistently, the economy could stall.

Antebellum North

There is a wealth of caselaw relating to the South and firearm possession, but the same cannot be said about the North and West. The limited information available shows a very different path than the South. In western frontier towns, like Dodge City and Tombstone, local law enforcement banned carrying firearms within city limits.[7]  They enacted this ban because the western frontier needed new residents to keep it going. To attract people from the more settled areas of the country, law enforcement in the wild west had to make their cities look safe and orderly. The firearm ban was a way to make sure their residents felt safe, and by extension, new settlers who would bolster the local economies.

The American South is often associated with racial tension and segregation, but they also existed in the North, especially in the years leading up to the Civil War. In the 1830s and 40s, there were many violent attacks against black people in northern states. Several of those attacks became riots. In 1831, a riot broke out between about one hundred white people and an undetermined number of black residents of a Snowtown, Rhode Island neighborhood. In Boston in 1843, four black men were attacked by a group of white sailors. The four black men defended themselves. Soon after that incident, a mob of several hundred white people attacked and beat every black person they could find.

In both instances, the mobs were dispersed by militia firing into the crowds. [8] Black residents in the northern states formed their own militias as protection against these violent confrontations. Though most laws forbade black gun ownership, they were not technically forbidden from forming militias. In Providence, they formed the African Greys. In Boston, the formed an unnamed private militia company.[9] In some cases, an actual militia was not even necessary to dispel violence. In Philadelphia in 1835, a two—day riot erupted after two young men, one white and one black, got into a physical fight. Local police barricaded the area to contain the violence, but the violence was quashed by a mere rumor about a black militia. Just the possibility of a black militia was enough to end that riot.

The Civil War & Reconstruction

Later, the country was divided by a war to end slavery. Prior to the Civil War, black Americans were generally not allowed to own guns. At the war’s onset, many black people fled north to join the Union Army, where they were issued firearms. The soldiers were allowed to keep the guns as compensation for unpaid wages when the war was over. [10]  When these newly emancipated people returned to their homes in the South, armed with guns, former slave owners grew nervous. With slavery abolished, white Southerners feared the former slaves would retaliate against former slave owners. To neutralize the perceived threat, the Black Codes were passed. [11] These codes made it illegal for black people to own firearms and required freed slaves to sign labor contracts under threat of being forced into unpaid labor. [12]

The Black Codes caused increased tension and unstable economies throughout Reconstruction America. Southern states were required to ratify the 14th Amendment in 1867, which granted equal protection to former slaves. [13] In 1870, the Enforcement Act was put in place to ensure that black people were guaranteed their right to vote would not be denied based on race, color, or “previous condition of servitude.” [14]

In 1871, the Colfax Massacre resulted in over a hundred deaths of black men. The Massacre was started when a group of white men tried to stop a group of black men from peaceably assembling. The right to peaceably assemble is a right enshrined in the Enforcement Act of 1870. In 1876, three men were convicted of violating the Enforcement Act in U.S. v. Cruikshank. The Court interpreted the meaning of the Second Amendment very narrowly. The Court reasoned the language, “shall not be infringed,” meant “no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”[15]  The Court reasoned the two primary issues in Cruikshank, the First and Second Amendment rights to assembly and the bearing of arms, were intended only to restrict the actions of the federal government and did not apply to the states or private citizens.

Early Twentieth Century

At the start of the twentieth century, America was divided. At times it was upbeat and effervescent, but deeply pessimistic and morose at others. The early twenties saw an unprecedented economic boom, but it was short lived, and ended with the Wall Street Crash of 1929. Gripped by the ensuing Great Depression, America watched as prohibition fostered the growth of crime and ordinary citizens who found themselves unexpectedly out of work turned to mobsters in search of a paycheck. [16]

During this dark time the St. Valentine’s Day Massacre happened. Al Capone was a looming presence in Chicago in the twenties, and it was widely believed he was responsible for the murder of seven gangsters on the city’s north side. In the middle of the day on February 14th, 1929, the seven men were lined up against a wall and shot. Because of the public outcry caused by the brutality of the Massacre, and the overall atmosphere in America at the time, the National Firearms Act passed five years later. The Act required firearms like the machine guns used in the St. Valentine’s Day Massacre to be registered and taxed. It placed the same requirements on shotguns with shortened barrels.

Just a few years after the National Firearms Act was passed, it was challenged in the Supreme Court in United States v. Miller. This was a complicated case involving several issues, but the primary issue was whether Miller’s unregistered double barrel shotgun with a shortened barrel had anything to do with the preservation of a militia. Miller claimed the requirement to register and pay taxes on his shotgun violated the Constitution, but the Court disagreed. In its opinion, the Court said it could not find a reasonable relationship between Miller’s short barreled shotgun and a well-regulated militia’s efficiency or preservation. Because the Court found such a relationship lacking, it reasoned the Second Amendment did not guarantee the right to bear such a weapon.[17]

The Miller Court stressed that, as it was originally adopted, the Constitution granted many powers to the Congress, including the ability to implement a militia to execute the laws of the union, to suppress rebellions and protect from invasions, and the power to organize, arm, discipline, and govern the militia. To the Miller Court, it was “obvious” that the Second Amendment was put in place to foster the continuation and the effectiveness of these powers. In short, the Court interpreted the Second Amendment with a view to “its purpose of rendering effective the Militia.”[18]

Modern Era

The 2008 Supreme Court case District of Columbia v. Heller relied on Cruikshank and Miller when it held the District of Columbia’s general ban on handgun possession violated the Second Amendment. The Heller Court agreed with Miller’s explanation that the “[m]ilitia comprised all males physically capable of acting in concert for the common defense.” [19] After a thorough dissection of the Second Amendment’s language, the Court said the Second Amendment does not only protect organized militias since the militia in colonial America consisted of the people. The position that it was “the people” who comprised both civilian citizens and militia members caused the Court to conclude that the Second Amendment is exercised on an individual level and belongs to every single American citizen. [20]

 In the 2016 case, Peruta v. County of San Diego, the Ninth Circuit Court of Appeals held “the right of a member of the general public to carry a concealed firearm in public was not, and never has been, protected by the Second Amendment.”[21] The Court further reasoned that “a requirement of good cause, however defined, was necessarily allowed by the Amendment.”[22] The plaintiff wanted to carry concealed firearms as a form of self-defense, but did not show a good cause to carry concealed firearms under California’s good cause requirement. The plaintiff said this requirement violated the Second Amendment, but the Court held “there is no Second Amendment right for members of the general public to carry concealed firearms in public.”[23]

Over the years, the focus has shifted to what the Second Amendment is truly meant to protect. Is it intended to protect the private citizen’s right to keep and bear arms? Is it meant to apply to militia organizations like the National Guard? America’s colonists had a well-founded fear of oppressive governments, so it was a practical measure for citizens to own firearms. The America in which we live is vastly different than the one settled by colonists.

In the twenty-first century, there are no traditional militias in the United States. The current federal military structure is considered unassailable by most. Citizens today do not keep their firearms in readiness to come to the defense of the country as part of a militia, but they do keep firearms to defend their homes against invasion. The long history of America’s relationship with guns still influences the way people view them today. While most gun owners do have them for home protection, many believe gun ownership is also essential to their sense of freedom.[24]

 After 227 years, the debate over how to interpret the Second Amendment continues just as hotly as ever. The backdrop and atmosphere have changed many times over, but we are still without a clear understanding on what the original language means and the most appropriate way to implement the Second Amendment in the 21st century. The only thing certain is that the right to bear arms is not without limits. For each case, the parties must argue how a law infringes upon the right to a “well-regulated militia” instead of a right to own guns.

[1] https://www.pri.org/stories/2017-11-17/origins-second-amendment

[2] Nunn v. State, 1 Ga. 243 (1846)

[3] Id.

[4] Id.

[5] https://www.theatlantic.com/politics/archive/2015/09/the-origins-of-public-carry-jurisprudence-in-the-slave-south/407809/

[6] Id.

[7] https://www.yalelawjournal.org/forum/firearm-regionalism-and-public-carry#_ftnref69

[8] http://www.guncite.com/journals/cd-recon.html#h3.2

[9] Id.

[10] https://www.pri.org/stories/2017-11-17/origins-second-amendment

[11]  Id.

[12] https://www.history.com/topics/black-history/black-codes

[13] Id.

[14] Id.

[15] United States v. Cruikshank, 92 U.S. 542 (1875)

[16] http://www.thefinertimes.com/20th-Century-Crime/organised-crime-in-the-1920s.html

[17] United States v. Miller, 307 U.S. 174, 59 S. Ct. 816 (1939)

[18] Id.

[19] District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008)

[20] Id.

[21] Peruta v. Cnty. of San Diego, 824 F.3d 919 (9th Cir. 2016)

[22] Id.

[23] Id.

[24] http://www.pewsocialtrends.org/2017/06/22/americas-complex-relationship-with-guns/

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