Stop Lying about the Historical Understanding of Gun Rights

By Charles C. W. Cooke

Wednesday, June 01, 2022

 

If it will please the court, I will happily fall onto both my knees, throw my arms up into the air, shake my head plaintively, and plead with America’s journalists, in the name of all that is good and right, to stop doing this:

 

The interpretation that the Second Amendment extends to individuals’ rights to own guns only became mainstream in 2008, when the Supreme Court ruled in a landmark gun case, District of Columbia vs. Heller, that Americans have a constitutional right to own guns in their homes, knocking down the District’s handgun ban.

 

This claim was made yesterday in the Washington Post, by a staff writer named Amber Phillips, under the tag “Analysis.” It is, of course, a ridiculous, contemptuous, malicious lie, a myth, or, if you prefer to use a phrase that has become popular of late, disinformation. It has never — at any point in the history of the United States — been “mainstream” to interpret the Second Amendment as anything other than a protection of “individuals’ rights to own guns.” The decision in Heller was, indeed, “landmark.” But it was so only because it represented the first time that the Supreme Court had been asked a direct question about the meaning of the amendment that, for more than two centuries up to then, had not needed to be asked.

 

Three months before Heller was decided, 73 percent of Americans believed that “the Second Amendment to the U.S. Constitution guarantees the rights of Americans to own guns,” with just 20 percent contending that it “only guarantees members of state militias such as National Guard units the right to own guns.” That 73 percent supermajority (we might call it the “mainstream”) included a majority of non-gun-owners — which, well, of course it did, given that the alternative interpretation represents a preposterous conspiracy theory. To be within that 20 percent minority, one must ignore all of the history before the Second Amendment’s passage; all of the contemporary commentary as to its meaning; James Madison’s intention to insert it into the Constitution next to the other individual rights in Article I, Section 9, rather than next to the militia clause in Article I, Section 8, clause 16; the 45 state-level rights to keep and bear arms, many of which predated the Second Amendment; the meaning of “the people” everywhere else in the Bill of Rights; the fact that it would make no sense at all to give an individual a “right” to join a state-run institution from which the federal government could bar him; and all evidence of what the United States was actually like prior to 2008.

 

Writing in 1989, the progressive law professor Sanford Levinson explained in the Yale Law Journal that the theory that Amber Phillips is now laundering “is derived from a mixture of 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.” Or, as Adam Liptak put it in the New York Times in 2007, the theory that Phillips has shared is based on “received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution.” Once one undertakes that “serious consideration,” one recognizes immediately that the “collective right” claim is, and always has been, a cynical, dishonest, outcome-driven farce. There is a good reason why even Barack Obama responded to the Heller decision by confirming that he had “always believed that the Second Amendment protects the right of individuals to bear arms”: The alternative is a joke.

 

Phillips’s attempt to rewrite history isn’t new, of course. Back in 2000, the historian — “historian” — Michael Bellesiles wrote a ridiculous book called Arming America, in which he claimed that American “gun culture” was invented in the mid 19th century, and that prior to that, gun ownership in the United States had been rare. For this contribution to the canon, Bellesiles won the Bancroft Prize . . . and then lost it, after his argument was exposed as a ridiculous fraud. Clayton Cramer, one of the men who brought the hoax to light, noted that the reason so many “historians” had “swallowed Arming America’s preposterous claims so readily is that it fit into their political worldview so well. . . . Arming America said things, and created a system of thought so comfortable for the vast majority of historians, that they didn’t even pause to consider the possibility that something wasn’t right.”

 

Neither, it seems, has Amber Phillips. “How did we get here?” she asks, before proposing that “historians attribute it to a relatively recent political push by gun rights groups to reinterpret the Constitution” and blaming the “appointment of judges and funding of scholars who would interpret the Second Amendment more broadly.” One must ask to what Phillips’s “relatively recently” modifier applies? Does it pertain to the 1982 Senate report that concluded that it was “inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner”? Is that when this started? If not, how about in 1960, when Hubert Humphrey — the man who invented the Peace Corps and Medicare, and was a tireless opponent of nuclear-weapons testing — insisted casually that “one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms,” and submitted that “the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible”?

 

Perhaps Phillips’s “gun rights groups” went back in time a little earlier, to 1880, when the most famous legal scholar of the era, Thomas Cooley, observed that the meaning of the Second Amendment was “that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose”? Or to 1868, when, during the debate over the 14th Amendment, Senator Jacob Howard listed the “right to keep and bear arms” among the “privileges and immunities” that would now be extended to freed blacks? Perhaps they helped draft the 1857 Dred Scott decision, in which the disgraceful Justice Taney warned that if black Americans were to be regarded as citizens, they would enjoy “the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went”?

 

Am I still underestimating it? Did this dastardly plot to read the English language plainly start even earlier? Was St. George Tucker on the Federalist Society payroll when he wrote in 1803 that “the right of the people to keep and bear arms shall not be infringed; . . . and this without any qualification as to their condition or degree, as is the case in the British government”? Did it begin in 1791, when Representative Roger Sherman described the Second Amendment as protecting “the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made”? Or 1789, when the Philadelphia lawyer Tench Coxe observed of the unamended Constitution that “the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people,” and of the Second Amendment specifically that “the people are confirmed by the article in their right to keep and bear their private arms”? Surely, the scheme cannot have reached as far back as 1776, 15 years before the Second Amendment was ratified and 232 years before Heller, when Pennsylvania became the first state to affirm in law that “the people have a right to bear arms for the defence of themselves and the state”?

 

I could go on, but I won’t, because it’s not necessary. Instead, I will reiterate my plea to the press: Please, stop it. You’re not fooling the American public. You’re not fooling the courts. You’re just making fools of yourselves, and of the handful of motivated reasoners whom you’re misinforming. Democracy, Darkness — you know the rest.