There comes a point during every American gun-control debate at which the side calling for draconian restrictions gives up on arguing the specifics or proposing detailed legislative change and rushes stupidly to deceit. Often, this rush involves the frustrated and farcical insistence that the U.S. Constitution does not, in fact, protect an individual right to bear arms.
On other occasions, it involves the attempt to destroy the reputation of the Second Amendment by granting that, while the provision may protect the private ownership of guns in some form, it was nevertheless designed for ugly or base reasons, and that it is therefore tainted.
In both cases, the intention is the same: To short-circuit a debate that they know cannot be won. By removing from the discussion one of the core checks upon which the American political system relies, opponents of the right to keep and bear arms hope to demote it from a cherished part of the much-admired Bill of Rights to an embarrassing vestige of an age long gone, and, thereby, to cast it as a mistake that should be rectified as soon as is politically possible.
This tendency is a destructive one, in part because it is a sin to lie about history in order to advance contemporary political goals. It is also destructive because it has the effect of funneling all of our historical attention onto 27 words in the federal Constitution. This, in turn, permits the integrity of one of our core liberties to be rendered contingent upon our opponent’s willingness to accurately read a single sentence of law.
It was, of course, entirely obvious to the men who wrote the federal Second Amendment that its purpose was to protect the individual’s right to keep and bear arms. It was obvious, too, to the commentators who explained it, to the jurists who interpreted it and to the citizenry that ratified it. Nevertheless, contrary to the implications of the “but actually” brigade, it is simply not the case that the Second Amendment has served as the sole, or even the primary, protection of that right throughout American history—or, indeed, that it is the sole means by which the right is legally affirmed.
There are also ubiquitous equivalents at the state level—equivalents that are both numerous and robust. Should they wish to fight back against the straight-to-the-root tactics that are gaining currency and favor, advocates of gun rights must broaden the shoulders of the giants on which they stand and make it clear that they, not their opponents, enjoy the slam-dunk historical case.
In 1792, Kentucky included in its inaugural Constitution: “That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”
In 1802, Ohio declared: “That the people have a right to bear arms for the defense of themselves and the State.”
In 1816, Indiana ensured that “The people shall have a right to bear arms, for the defense of themselves and the State.”
In 1817, Mississippi entrenched that “Every citizen has a right to bear arms, in defense of himself and the State.”
In 1819, Alabama recognized “That every citizen has a right to bear arms in defense of himself and the state.”
In 1820, Missouri affirmed that “[the] right to bear arms in defense of themselves and of the State cannot be questioned.”
In 1835, Michigan confirmed that “Every person has a right to bear arms for the defense of himself and the State.”
In 1836, Texas maintained that “Every citizen shall have the right to bear arms in defense of himself and the republic.” And so on, and so forth. Were they mistaken?
In 1889, Wyoming declared: “The right of citizens to bear arms in defense of themselves and of the state shall not be denied.”
In 1896, Utah certified that “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.”
In 1912, Arizona guaranteed that “The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired.”
Both Alaska and Hawaii copied the Second Amendment verbatim into their constitutions upon joining the Union in 1959. Nevada, Delaware, New Hampshire and West Virginia all realized in the 1980s that they had no explicit protections within their state charters and set about remedying that oversight.
If this is really only a right for state militias, then we are looking here at one of the great mass delusions in American history—a delusion that affected lawmakers, constitution-drafters and judges alike, and that, astonishingly, both predated and followed the ratification of the sentence that allegedly caused all the confusion.