Monday, December 24, 2012

Saul Cornell on the Second Amendment

Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.

In Wednesday's New York Daily News he published an op-ed entitled "The Second Amendment You Don't Know."  He argues that the founders' original intent in passing the second amendment was "as much about regulating firearm possession as enabling it."  Here is a taste:

In 2008, a closely divided Supreme Court abandoned more than 70 years of precedent and for the first time in American history affirmed that the Second Amendment is about a right to have a handgun in the home for self-defense. Lost in most of the commentary then and now is that this is almost the exactly opposite of what James Madison, the primary architect of the amendment, intended, and is hard to reconcile with the way most ordinary Americans would have read it in 1791. 

In 1776, most of the original state constitutions did not even include an arms-bearing provision. The few states that did usually also included a clause protecting the right not to bear arms. Why? Because, in contrast to other cherished rights such as freedom of speech or religion, the state could not compel you to speak or pray. It could force you to bear arms. 

The founders had a simple reason for curbing this right: Quakers and other religious pacifists were opposed to bearing arms, and wished to be exempt from an obligation that could be made incumbent on all male citizens at the time. 

Saul Cornell
When the Second Amendment is discussed today, we tend to think of those “militias” as just a bunch of ordinary guys with guns, empowering themselves to resist authority when and if necessary. Nothing could be further from the founders’ vision. 

Militias were tightly controlled organizations legally defined and regulated by the individual colonies before the Revolution and, after independence, by the individual states. Militia laws ran on for pages and were some of the lengthiest pieces of legislation in the statute books. States kept track of who had guns, had the right to inspect them in private homes and could fine citizens for failing to report to a muster. 

These laws also defined what type of guns you had to buy — a form of taxation levied on individual households. Yes, long before Obamacare, the state made you buy something, even if you did not want to purchase it. (The guns required by law were muskets, not pistols. The only exceptions to this general rule were the horsemen’s pistols that dragoons and other mounted units needed.) 

The founders had a word for a bunch of farmers marching with guns without government sanction: a mob. One of the reasons we have a Constitution is the founders were worried about the danger posed by individuals acting like a militia without legal authority. This was precisely what happened during Shays’ Rebellion, an insurrection in western Massachusetts that persuaded many Americans that we needed a stronger central government to avert anarchy.

Many people think that we have the Second Amendment so that we can take up arms against the government if it overreaches its authority. If that interpretation were correct, it would mean that the Second Amendment had repealed the Constitution’s treason clause, which defines this crime as taking up arms against the government. In reality, in the first decade after the Constitution, the government put down several rebellions similar to Shays - and nobody claimed that they were merely asserting their Second Amendment rights.

Cornell also discusses the Second Amendment in this article in Dissent.