{"id":86650,"date":"2022-10-13T10:25:32","date_gmt":"2022-10-13T15:25:32","guid":{"rendered":"https:\/\/milesfortis.com\/?p=86650"},"modified":"2022-10-13T10:31:24","modified_gmt":"2022-10-13T15:31:24","slug":"86650","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=86650","title":{"rendered":""},"content":{"rendered":"

Anti-gun advocates were formerly able to foist this off on the people because accessing a lot of the original writings had to be done by reading the actual hard copy. “But, thanks to the digitization of old texts on Google Books and Google Scholar, access to second-generation American viewpoints is easier now than ever before.<\/em>” The internet and its search engines have finally been able to put the lie to this ‘collective right’ BS.<\/p>\n

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BLUF
\nThe common assertion that the individual-right interpretation of the Second Amendment is a gun-lobby myth invented in the latter half of the 20th\u00a0century is, to repurpose Justice Brennan\u2019s famous quote, \u201cone of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have seen in my lifetime.\u201d The historical record shows that 19th-century Americans, whatever other disputes they had about the provision, widely viewed the Second Amendment as protecting an individual right.<\/strong><\/p>\n

Analysis: Historical Texts Show Individual Right to Keep and Bear Arms Isn\u2019t an NRA Invention<\/a><\/p>\n

For anyone who frequently discusses the Second Amendment, there is no avoiding the debate over whether it protects an individual or collective right. The prevailing view accepted by the Supreme Court in 2008 is that the amendment protects every individual\u2019s right to keep and bear arms. But many detractors, especially gun-control advocates, still argue it only covers a collective or militia right.<\/p>\n

When the individual right view started to gain ground (or, rather,\u00a0re<\/i>gain ground) in the late 20th century, a common line of attack was that the pro-gun side was essentially making it all up. And it\u2019s one that\u2019s been repeated even at the highest levels of the legal profession.<\/p>\n

\u201cThe gun lobby\u2019s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have seen in my lifetime,\u201d Former Chief Justice Warren Burger said\u00a0in a 1991 PBS interview<\/a>.<\/p>\n

Gun-control advocates still use this argument, with\u00a0The Intercept<\/i>\u00a0asserting in a\u00a0June 2022 article<\/a>\u00a0that \u201cno law review article from 1888 (when they were first indexed) through 1959 ever concluded the Second Amendment guaranteed an individual right to a gun.\u201d<\/p>\n

There are three ways to test the claim that the NRA and other gun-rights advocates created the individual-right view in the last several decades: What did the founders say? What did older case law say? And what did prominent second-generation American legal scholars and elected officials\u00a0say?<\/p>\n

The courts and the public writ large have already deeply examined the first two options.<\/p>\n

<\/p>\n

For example, Madison\u2019s argument\u00a0in Federalist 46<\/a>\u00a0that Americans have \u201cthe advantage of being armed\u201d that governments denied to \u201cthe people of almost every other nation\u201d has been widely cited in public debate. The same can be said for Tench Coxe\u00a0proclaiming<\/a>\u00a0in\u00a0Remarks on the First Part of the Amendments to the Federal Constitution<\/i>, under the pseudonym \u201cA Pennsylvanian,\u201d as part of the June 18, 1789 edition of the Philadelphia Federal Gazette that \u201cthe people are confirmed by the article in their right to keep and bear their private arms.\u201d<\/p>\n

Similarly, with its landmark decisions in\u00a0Heller<\/i><\/a>,\u00a0McDonald<\/i><\/a>, and\u00a0Bruen<\/i><\/a>, the Supreme Court has cited extensive early case law in justifying its embrace of the individual rights view.<\/p>\n

So, let\u2019s focus on the final category: how did early American legal scholars\u00a0interpret the Second Amendment? While various quotes are cited here and there, such as former Supreme Court Justice Joseph Story\u2019s\u00a01833 claim<\/a>\u00a0that \u201cthe right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic,\u201d this area remains forgotten by most people.<\/p>\n

But, thanks to the digitization of old texts on Google Books and Google Scholar, access to second-generation American viewpoints is easier now than ever before.<\/strong><\/p>\n

A review of 19th-century scholarly writings reveals there were two dominant camps when it came to the Second Amendment. The first included those who took a nearly absolute view that it guaranteed access to any weapon. Then there were those that believed the right was primarily limited to weapons most useful for warfare. However, the idea that the Second Amendment protected an individual right connected the two sides.<\/p>\n

The Expansive View\u00a0<\/b><\/p>\n

Several people of note in the 19th\u00a0century spoke of the Second Amendment and the right it protects in ways that are near-indistinguishable from the most fervent of pro-gun voices today. If it were true the individual-right view was invented in the last few decades, people espousing this sort of view in the 19th\u00a0century, frankly, should not exist. But they did exist and in surprising numbers, especially among abolitionists.<\/p>\n

Adam Seybert, a doctor who served in Congress from 1809 to 1815, wrote a book in 1818 whose title was quite the mouthful:\u00a0Statistical Annals: Embracing Views of the Population, Commerce, Navigation, Fisheries, Public Lands, Post-Office, Establishment, Revenues, Mint, Military and Naval Establishments, Expenditures, Public Debt and Sinking Fund of the United States of America.<\/i><\/p>\n

Yet, as comically lengthy as his title was, Dr. Seybert\u2019s view on the Second Amendment was concise and to the point. Dr. Seybert\u00a0explained that<\/a>\u00a0\u201cour constitution guarantees to every citizen the right \u2018to keep and bear arms,\u2019 while in other countries this very important trust is controlled by the caprice and tyranny of an individual.\u201d<\/p>\n

Dr. Seybert was not alone, and others went even further to talk about how the right the Second Amendment protects applies not just to defense against tyranny or foreign invasion but also personal defense. Joel Tiffany, a prolific 19th-century American author, stated this quite clearly in his 1850 work\u00a0A Treatise on the Unconstitutionality of American Slavery Together with the Powers and Duties of the Federal Government in Relation to that Subject.\u00a0<\/i>Tiffany\u00a0wrote<\/a>\u00a0that the right to bear arms \u201cis accorded to every subject for the purpose of protecting and defending himself, if need be, in the enjoyment of his absolute rights to life, liberty, and property. And this guaranty is to all without any exception; for there is none, either expressed or implied.\u201d<\/p>\n

Lysander Spooner, one of the earliest and most influential libertarian political philosophers,\u00a0added that<\/a>\u00a0the Second Amendment \u201cobviously recognizes the natural right of all men \u2018to keep and bear arms\u2019 for their personal defence; and prohibit both Congress and the State governments from infringing the right of \u2018the people\u2019 \u2014 that is, of\u00a0any<\/i>\u00a0of the people, \u2014 to do so.\u201d<\/p>\n

The famous newspaper publisher and abolitionist Horace Greeley\u00a0said in an 1867 speech<\/a>\u00a0to a Black church in Richmond that \u201cour Federal Constitution gives the right to the people everywhere to keep and bear arms; and every law whereby any State legislature undertakes to contravene this, being in conflict with the Constitution of the United States, had no longer any legal force.\u201d<\/p>\n

William Rawle, a lawyer who served as U.S. district attorney for Pennsylvania from 1791 to 1800, shared a similarly expansive view of Second Amendment protections at the federal and state level. In his 1825 work\u00a0A View of the Constitution of the United States<\/em>, Rawle\u00a0wrote<\/a>\u00a0that \u201cno clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.\u201d<\/p>\n

The idea espoused that states could not infringe on the right to bear arms was not universally recognized, though. Some believed the Second Amendment, and the rest of the Bill of Rights, limited only the\u00a0federal<\/i>\u00a0government. This view appears to have become more prevalent in the wake of 1876\u2019s\u00a0United States v. Cruikshank<\/i><\/a>.\u00a0<\/i>In that case, the Supreme Court overturned federal convictions for white men who murdered dozens of black men during the 1873 Colfax Massacre and held the First and Second Amendment protections don\u2019t apply to state governments or the actions of individuals.<\/p>\n

The idea that there is a state\/federal dichotomy in the Second Amendment\u2019s application was explained by Horace Edgar Flack in his\u00a01906 dissertation<\/a>\u00a0on the adoption of the 14th\u00a0amendment.<\/p>\n

\u201cThe right to keep and bear arms is recognized in the national Constitution, but only to the extent of saying that the Federal Government could not deny the right, and not at all limiting the power of the States to determine who might exercise that right,\u201d Flack wrote.<\/p>\n

Henry Campbell Black, the original author of\u00a0Black\u2019s Law Dictionary,\u00a0<\/i>wrote<\/a>\u00a0in his 1895\u00a0Handbook of American Constitutional Law\u00a0<\/i>that \u201cThe Second Amendment means no more than that it shall not be denied or infringed by congress or the other departments of the national government. The amendment is no restriction upon the power of the several states.\u201d<\/p>\n

Only much later, as the Supreme Court slowly rejected its previous determination in\u00a0Cruikshank<\/i>\u00a0and incorporated each right to the states through the 14th\u00a0Amendment, would that point of view recede. The Court wouldn\u2019t get around to incorporating the Second Amendment until 2010\u2019s\u00a0McDonald v. Chicago<\/i>.<\/p>\n

Still, we know the 19th-century scholars who disagreed on incorporation agreed on the individual nature of the Second Amendment right. Rawle\u00a0wrote<\/a>\u00a0in the same 1825 book that a single individual carrying arms could only be a crime if there were \u201ccircumstances giving just reason to fear that he purposes to make an unlawful use of them.\u201d<\/p>\n

And Flack outlines how the 14th Amendment was widely seen as extending gun-rights protections for individuals to block state actions. Senator Lyman Trumbull, who had co-authored the 13th\u00a0Amendment, said of the 14th, \u201cthis bill, if enacted into law, would deprive the States of their police power, and would nullify the laws of his State which forbade negroes to keep fire-arms or ammunition.\u201d Flack noted Trumbull\u2019s claim \u201cwas not questioned by any one.\u201d He further argued that \u201csince Mr. Trumbull also seemed to recognize that the right to keep arms was a right to which all were entitled, we may conclude that this right was intended to be conferred upon negroes if the States permitted white men to enjoy it.\u201d<\/p>\n

Federal infringement of the right invited anger and protest as well. During the civil war, the federal government often exercised direct control of arms for the war effort, and this was met with angry appeals to the Second Amendment. Clement Laird Vallandigham, the Representative for Ohio\u2019s 3rd\u00a0Congressional District from 1858 to 1863 and leader of the Copperhead faction of anti-war Democrats during the American Civil War, protested such federal arms control in\u00a0one of his speeches<\/a>: \u201cSir, the Constitutional right to keep and bear arms, carries with it the right to buy and sell arms; and fire-arms are useless without powder, lead, and percussion caps. It is our right to have them[\u2026].\u201d<\/p>\n

Lastly, Thomas M. Cooley, one of the leading legal minds of the 19th\u00a0century and Chief Justice of Michigan\u2019s Supreme Court from 1864 to 1885, wrote definitively about the Second Amendment.\u00a0 In his 1898 book\u00a0The General Principles of Constitutional Law in the United States of America<\/i>, Cooley not only addressed but ultimately\u00a0dismissed<\/a>\u00a0the suggestion the amendment protected only a \u201cmilitia right.\u201d<\/p>\n

\u201cIt may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent[\u2026],\u201d he wrote. \u201cThe meaning of the provision undoubtedly is, 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.\u201d<\/p>\n

The More Limited View<\/b><\/p>\n

There were certainly people in the 19th\u00a0century who were not as absolute in their views of the Second Amendment. But, while these individuals typically believed the government could limit weapons commonly used in crime, they also saw the Second Amendment as protecting an individual right to own weapons that were most useful for soldiers. In other words, they believed there was a personal right to own and carry\u00a0only<\/i>\u00a0military weapons.<\/p>\n

Joel Prentiss Bishop, an influential legal mind of the time who has now drifted into obscurity,\u00a0wrote<\/a>\u00a0in his 1868\u00a0Commentaries on the Criminal Law<\/i>\u00a0that \u201cthe provision protects only the right to \u2018keep\u2019 such \u2018arms\u2019 as are used for purposes of war, in distinction from those which are employed in quarrels and brawls and fights between maddened individuals.\u201d<\/p>\n

Others who remain famous to this day shared Bishop\u2019s view. Black also\u00a0wrote<\/a>\u00a0in his 1895 handbook that the Second Amendment \u201cis a natural right, not created or granted by the constitutions[\u2026]The \u2018arms\u2019 here meant are those of a soldier. They do not include dirks, bowie knives, and such other weapons as are used in brawls, fights, and riots. The citizen has at all times the right to keep and bear arms of modern warfare[\u2026]It does not tend to restrict the right of the citizen to bear arms for lawful purposes, but only punishes a particular abuse of that right.\u201d<\/p>\n

As to the right to carry, Black continued: \u201cThis right is not infringed by a state law prohibiting the carrying of concealed deadly weapons[\u2026] But a law which should prohibit the wearing of military weapons openly upon the person, would be unconstitutional.\u201d Suffice it to say, Black and many others from his time would likely be surprised that open carry is seen as the more aberrant behavior in most places today while concealed carry is the norm. Yet there is no denying that he did believe there was an individual right to both keep arms and bear them, albeit one limited to \u201carms of modern warfare\u201d in both contexts.<\/p>\n

Charles Humphreys shared these views as well. He\u00a0wrote<\/a>\u00a0in his 1822 book\u00a0A Compendium of the Common Law in Force in Kentucky To which is Prefixed a Brief Summary of the Laws of the United States\u00a0<\/i>that \u201cRiding or going armed with dangerous or unusual weapons is a crime against the public peace, by terrifying the people of the land, which is punishable by forfeiture of the arms, and fine and imprisonment. But here it should be remembered, that in this country the constitution guarranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify the people unnecessarily.\u201d<\/p>\n

John Norton Pomeroy, another major legal scholar of the 19th\u00a0century, best explained the view that securing a well-armed militia is not mutually exclusive with an individual right but is instead wholly dependent on it. In his 1888 book \u201cAn Introduction to the Constitutional Law of the United States<\/i>,\u201d Pomeroy\u00a0wrote<\/a>\u00a0that \u201cThe object of this clause is to secure a well-armed militia[\u2026]But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.\u201d<\/p>\n

However, Pomeroy added that restricting concealed weapons or barring individuals from accumulating \u201cquantities of arms with the design to use them in a riotous or seditious manner\u201d was acceptable. He concluded that the Second Amendment \u201cis analogous to the one securing freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libelous abuse, is protected.\u201d<\/p>\n

Perhaps the most famous commentary that squares the militia portion of the Second Amendment with the individual-right view came from St. George Tucker, an influential law professor at the College of William & Mary who President James Madison later made a U.S. district judge. He wrote an\u00a0American version of Blackstone\u2019s Commentaries on the Laws of England<\/a>, the first of its kind and a valuable reference work for many American lawyers and law students of the time. Tucker argued in the commentary that \u201cThe right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.\u201d<\/p>\n

Anna Laurens Dawes, author and daughter of Senator Henry Laurens Dawes, also embraced the view of a more qualified individual right. In her 1885 book \u201cHow We Are Governed<\/i>,\u201d Dawes\u00a0wrote<\/a>, \u201cLest an indirect effort be made to interfere with the Republic, the Constitution goes on to forbid any law preventing the people from keeping and bearing arms. A law prohibiting the use of weapons would take away all possibility of resisting any injustice[\u2026]But it has been carefully explained by statute that this does not allow the carrying about of pistols and other concealed weapons. This practice is dangerous in every way.\u201d<\/p>\n

Quite similarly, in her 1900 work \u201cOur Government Brief Talks to the American Youth on Our Governments, General and Local<\/i>,\u201d Laura Donnan\u00a0explained<\/a>\u00a0that the Second Amendment \u201cdoes not mean that only organized state militia may keep and bear arms, but it means that every citizen may do so[\u2026] However, it does not mean that men are allowed to carry concealed weapons.\u201d<\/p>\n

Conclusion<\/b><\/p>\n

The common assertion that the individual-right interpretation of the Second Amendment is a gun-lobby myth invented in the latter half of the 20th\u00a0century is, to repurpose Justice Brennan\u2019s famous quote, \u201cone of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have seen in my lifetime.\u201d The historical record shows that 19th-century Americans, whatever other disputes they had about the provision, widely viewed the Second Amendment as protecting an individual right.<\/p>\n","protected":false},"excerpt":{"rendered":"

Anti-gun advocates were formerly able to foist this off on the people because accessing a lot of the original writings had to be done by reading the actual hard copy. “But, thanks to the digitization of old texts on Google Books and Google Scholar, access to second-generation American viewpoints is easier now than ever before.” … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,8,27],"tags":[],"class_list":["post-86650","post","type-post","status-publish","format-standard","hentry","category-rights","category-rkba","category-science"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/86650","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=86650"}],"version-history":[{"count":3,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/86650\/revisions"}],"predecessor-version":[{"id":86653,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/86650\/revisions\/86653"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=86650"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=86650"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=86650"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}