Ep. 35: The Second Amendment, A Right to Bear Arms?

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Episode Description

American society is as divided as ever. One of the most controversial topics in today’s political atmosphere is the right to bear arms. In this episode, we go into the history of the Second Amendment. This analysis includes prevalent court decisions, such as District of Columbia v. Heller, Caetano v. Massachusetts, and United States v. Miller. We review Federalist 46 by James Madison and discuss some of the ideology behind the Second Amendment during the founding period.

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Show Notes (abridged script)

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The Second Amendment

The Controversy

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

With only twenty-seven words, the Second Amendment is one of the most controversial sections in the United States’ Constitution. For some, their very existence relies on it, they can’t imagine a life without a right to bear arms, nor a country where the people are subservient to the government. For others, the amendment is the bane of their existence. They feel that the Second Amendment was added to the Bill of Rights only to strengthen the military and the states, not to allow individual people to carry arms.

A Brief History of Guns

Guns were not foreign to the Founding Fathers or to the American people at the writing of the constitution. In fact, the colonists had just used them to defeat the British in the Revolution to obtain their very freedom. Without guns, the United State of America as it exists today might not exist at all.

Let’s take a moment to look at the history of guns. The world’s first guns were created in Eurasia around 1250 AD.  They were nothing like those we have today and were very crude. They were called “hand cannons” simply because they worked and looked like mini cannons. These weapons evolved greatly by the time the American colonists arrived in the new land, and even more so by the time of the American Revolution. By that time, many early Americans, including the Founding Fathers used the Kentucky Rifle.

This rifle, however, was not the only gun available at the time, and it was certainly not the most advanced. The Puckle gun was a revolving flintlock firing around 8 and a half shots per minute. The Ferguson Rifle fired anywhere from 6 to 10 shots in one minute. Additionally, the Belton Flintlock was so advanced the Continental Congress wanted to order one hundred of them but they were too expensive.

The Founding Fathers’ Take

This reliance on guns, then, and the desire to have checks and balances on the government, led to the implementation of the Second Amendment in the Bill of Rights. The Founding Fathers believed the Federal Government needed to be accountable to the people. They believed the best way to do this was to arm those very citizens. They believed that in the vast country that is the United States, the citizens would need guns to defend themselves.

Interestingly enough, James Madison wrote explicitly about the right to bear arms in Federalist 46: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

What About Gun Control?

Today, many argue that guns pose a major threat to society and to individual life and well-being. Assault rifles accessible to people fire thousands of rounds a minute. Gun related deaths have risen from around twenty-nine thousand in 1999 to thirty-four thousand in 2014. Numbers such as these bring forth new efforts to keep guns out of the wrong hands. In 2016, California passed Proposition 63 which limits the capacity of magazines and requires background checks to purchase ammunition.

Tragic mass shootings, such as Parkland, Columbine, and Sandy Hook, also elicit calls for tighter gun control. Laws such as the Brady Handgun Violence Protection Act of 1994 have been somewhat effective in keeping deadly weapons out of the wrong hands. The Brady Act blocked domestic abusers, convicted felons, and mentally ill persons from purchasing weapons. These restrictions helped lower the gun homicide rate by 32 percent from 1993 to 2006. Other gun laws, such as those prohibiting domestic abusers from purchasing firearms have also been effective. The FBI reports that these laws have kept 94,000 dangerous people from purchasing firearms, protecting the lives of abused spouses.

The Supreme Court’s Take

However, not all gun laws are effective, or even constitutional. The Washington DC Firearms Control Regulations Act of 1975 effectively stripped residents of their right to bear arms. Not only did the act prevent people from owning handguns, but it also required that all other firearms be kept unloaded and disassembled or bound by a trigger lock. In 2008, this Act was declared unconstitutional by the Supreme Court in its decision in District of Columbia v. Heller.

The court’s opinion, headed by Justice Scalia, stated that handguns were protected by the Second Amendment and could not be banned. The majority also decided that it was unconstitutional to force gun owners to keep their guns in an unusable condition. It held that the right to bear arms included the right to private activities such as hunting and self-defense. The court then defined self-defense as either protection from an imminent threat, such as a home invader or attacker, or a tyrannical government.

We also review a few different Supreme Court Cases having to do with the Second Amendment. Caetano v. Massachusetts ruled that the Second Amendment protects stun guns as means of self defense. This ruling was consistent with their decision in District of Columbia v. Heller. In United States v. Miller, the Supreme Court found that the Second Amendment did not protect citizens’ ability to keep and bear a sawed-off double-barrel shotgun.

A Halt to Tyranny

However, most people do not know of the second definition given by the court in Heller: that we can defend ourselves against our government. While a “tyrannical government” may sound extreme, it was a significant threat in the minds of the Founding Fathers when drafting the constitution, simply because they had used their guns to defeat Great Britain.

This is evidenced even outside the Second Amendment by Thomas Jefferson who was very outspoken on the topic. In a letter to James Madison prior to the signing of the constitution, he wrote, “What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”

Jefferson’s quote gives true meaning to the Second Amendment’s right to bear arms: it is to keep the government in check. Because while the branches of the government themselves create a system of checks and balances, the people must also keep the Federal Government accountable to them. The people must be able to keep the government from infringing on other rights given to them by the Constitution. With an unarmed populous the government can rule as it pleases, just as the British Government under King George ruled arbitrarily, restricting its citizens’ speech, religion, press, and other freedoms we enjoy today.

To Provide for the Common Defense…

This was an issue the founders were genuinely concerned about, pushing them to create the right to form a well-regulated militia and the right to bear arms. Moreover, the theme of protecting the people from an oppressive government was not exclusive to the Second Amendment.

It was a prevalent theme in the rest of the constitution as well. Most obviously in the preamble which states, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense…do ordain and establish this Constitution for the United States of America.”

This preamble explicitly states that the constitution was created to protect the people. It was to create a government where the people are able to protect themselves without relying on the government to do so.

Please note: In the podcast, I incorrectly referred to District of Columbia v. Heller as Heller v. District of Columbia.

 

Bills with Luke Scorziell does not provide investment, tax, or legal advice or recommendations. This material is solely intended for educational purposes based on publicly available information and may change at any time. Additionally, this article’s content is a summary of the Interviewee’s comments and, while rephrased by the Author, are not from the Author himself.

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