Rights Protected by the Second Amendment are Being Restored, not Created

Dean Weingarten in front of the Supreme Court

The jurisprudence of the Second Amendment is: it was ratified to protect the existing right of the people to keep and bear arms. It did not create new rights. One reason to protect the rights was to enable the creation of militias from the armed population.

It was well understood, at the time of ratification, the right to keep and bear arms included the right to do so for self defense as well as community defense, for hunting, and included the ancillary rights to practice, buy, sell and make weapons, as well as ammunition and accessories for them. These rights were not disputed, and were considered to be derived from the natural rights to life and liberty. From Heller:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

The American Second Amendment was recognized as needed because the English right to arms had been construed too narrowly to protect the colonists against the exercise of power by King George and the British Empire. The Americans had recently fought a long and bitter war sparked by the British attempts at disarming the American colonists.  The initial battles of Lexington and Concord were direct attempts by the representatives of the British Crown to confiscate gunpowder and, particularly, cannon.  Cannon were crew served weapons. The officers of the Crown confiscated plenty of individual weapons as well.

On April 3, 1775, the British government seized 13,425 musket cartridges with ball.

On April 19, the famous battles of Lexington and Concord occurred.

After April 19, General Gage worked to disarm Bostonians:

Then per the Connecticut Current newspaper, a General Gage decided to change the British narrative. He noted that the British just wanted to hold the guns for a little bit “for safe keeping” and then they promised to return them, “And that, the arms aforesaid at a suitable time would be return’d to the owners.”

Bostonians proceeded to turn in 1778 muskets, 634 pistols, 973 bayonets and 38 blunderbusses.

In June of 1775 General Gage declared martial law and offered to pardon all who would lay down their arms— except Samuel Adams and John Hancock. Per the (Connecticut Journal and New-Haven Post-Boy, June 21, 1775).

In 1777, at the height of the war, there were proposals to insure the American colonists would be disarmed if the war was won by the British.  This proposal was floated by General William Knox, the British under Secretary of State:

The Militia Laws should be repealed and none suffered to be re-enacted, & the Arms of all the People should be taken away, & every piece of Ordnance removed into the King’s Stores, nor should any foundry or manufactory of Arms, Gunpowder, or Warlike Stores, be evre suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without License; they will have but little need of such things for the future, as the King’s Troops, Ships Forts will be sufficient to protect them from any danger.

The Second Amendment was meant to defend against this sort of government power and overreach.

In a blatant attempt to re-write history, those who want a disarmed population claim the right to bear arms has been recently created by the Supreme Court in the Heller, McDonald, Caetano, and now Bruen decisions. They use the misleading claim the Supreme Court had never declared the Second Amendment to either: protect an individual right or protect the right to carry arms outside the home, until the decisions mentioned. They often claim the Second Amendment created the right to keep and bear arms.

Those claims are both misleading and/or false, depending on the precise wording. The Second Amendment did not create anything. It protected existing rights.

A large minority of people, perhaps a majority, believed the Second Amendment applied to the individual states, as well as the Federal government, before the Civil War. Perhaps the most famous of these was Chief Justice Taney of the Supreme Court, writing in the Dread Scott decision in 1857, about the dangers of recognizing black people as citizens (bold added):

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them 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.

In 1833, two generations after the ratification of the Second Amendment, the Supreme Court ruled the Bill of Rights did not apply to state laws. The court case was Barron v. Baltimore. The Fourteenth amendment, passed after the Civil War, in 1868, was specifically crafted to overturn Barron.

The effect of the Second Amendment  becomes obvious when one realizes the federal government did not pass any law infringing on the right to keep and bear arms from the time of ratification until the 1930's.  Even then, the law was crafted in an attempt to circumvent the Second Amendment.  While the Supreme Court, from time to time referenced the Second Amendment as protecting an individual right, there were no federal laws infringing on the right to keep and bear arms, until the infamous 1934 National Firearms Act and the 1938 Federal Firearms Act.

Without federal infringements, there were no Supreme Court cases to contest.

The Supreme Court gutted the Fourteenth Amendment after Reconstruction, refusing to enforce it, because there was no political will to do so. Enforcing the Fourteenth Amendment would have risked another Civil War to enforce minority rights of freed slaves in the South.

The Bill of Rights started to be enforced under the Fourteenth Amendment, gradually, about 1900, a generation after being ratified. The Progressives, who took and held power from 1932 on, were adamantly opposed to limits on Government power. They especially hated the Second Amendment. With Progressive judges in most of the federal courts, the Second Amendment was not incorporated under the Fourteenth Amendment until the McDonald decision until 2010.

The Heller and McDonald decisions do not create new rights. They restore rights which had been gradually infringed on by the States, and then the federal government.  Up until 1968, Americans could order anti-tank and anti-aircraft guns and ammunition, through the mail, to be delivered to their door. Violent criminal use was virtually non-existent. Only one example is known.

As the infringements on rights protected by the Second Amendment mounted, the resistance to those infringements grew louder and stronger. The Supreme Court did not suddenly decide to enforce the rights protected by the Second Amendment. Rather, they reacted to the enormous, strong, persistent call for restoration of those rights by a loud and successful grass-roots movement, which could not be denied. Reinforcing the movement was voluminous scholarship showing how the Second Amendment had been gradually infringed, particularly after Reconstruction and during the Progressive era. By the time of the Bruen decision, half of the states had removed most of the infringements on the carry of handguns (Constitutional Carry, no permits required). There were no bad effects from this restoration of rights.

Two Decades of Constitutional Carry Progress

Leftists like to start history when Progressive ideology started to gain ascendance in academic and political circles, about 1900.  That is when serious infringements against the rights protected by the Second Amendment became popular in some state legislatures, such as New York, and California. A poor decision by the Supreme Court of Kansas, in 1905, started the myth the Second Amendment was meant to protect a "collective right".

When Justice Clarence Thomas, in the Bruen decision, required historical evidence of accepted legislative practice in force when the Second Amendment was ratified, or to a lesser extent, the Fourteenth Amendment was ratified, he prevented leftist ideologue judges from cutting history off at 1900, and claiming anything before then does not matter.

This is basic originalist and textualist Constitutional law. The text matters, to be interpreted in the meanings understood at the time the amendment was ratified.

A basic assumption of Progressives is the Constitution is outdated and has to be "worked around" or "interpreted" to reach conclusions judges wish to make today, based on their desires for the current society, or their desire to alter it.

The argument is: That was then. This is now. Things are different. Old agreements are invalid.

Consider trying to operate your life with that philosophy: You purchased a car insurance policy with a $100 deductible. When you submit a claim the response is: That was then. This is now. The deductible is now $500.  Or, you agree to work a job. Your work is impeccable. The employer is not allowed to fire you because of your race, by law. Then, you are fired because you are white.  That was then. This is now. You purchase a home. Payments are $1,000 a month. The bank suddenly says: Your payments are $2,000 a month, in violation of the mortgage agreement. That was then. This is now.

When you hear "arguments" such as:

• The Second Amendment only applied to single shot muskets.
• There were no automatic weapons in the revolutionary war.
• Guns were not mass produced during the revolution.
• We do not need a militia now.
• The National Guard is the modern militia.
• We are not hunting for food or fighting hostile tribes today.
• More people are living in dense cities today.
• You don't need a gun today.

Those are all "That was then, This is now", arguments. Essentially, the argument is: your rights can be disappeared anytime the powers that be want to do so, based on the exigencies of the moment.

The Constitution is a contract between the people, the federal government, and the states. There are means to amend it within the Constitutional framework.

The Constitution is not a document subject to That was then, This is now flimflam, no matter how much leftists/progressives wish it to be.

Propaganda claiming the right to keep and bear arms is a new right, created by the Supreme Court, are versions of the: That was then, this is now, argument.  

The individual right to keep and bear arms both inside and outside the home, is not new. It existed before the Second Amendment. It has not been created recently. It is being restored.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch