When did the 2nd amendment stop being about a “well regulated militia” and start being
about individual gun ownership?
And did you know that the answer has to do with the KKK, German socialists, and Al Capone?
As one of the most hotly contested (and vaguely worded) sentences in history, the full text
of the 2nd amendment says: “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.”
So this intellectual crossword puzzle was added to the Bill of Rights by James Madison
and his crew of anti-federalists.
When they were ratified in 1791, the anti-federalists expressed nervousness about the newly formed
federal government gaining too much power over the states or becoming tyrannical.
So the language of the 2nd amendment was geared towards curbing the central government’s
power over individual political dissenters.
But today, the 2nd amendment and gun control debate is framed almost exclusively around
“the right to bear arms” without talking too much discussion of a well regulated militias.
And there’s a reason for that.
Because even though the story of gun rights and gun legislation is often debated in the
court of public opinion, when it comes to questions of Constitutional interpretation,
there’s really only one court that reigns supreme… and that’s, well the Supreme Court.
So for this episode I’m going to trace the 5 major rulings made by the Supreme Court
on the 2nd amendment, since its ratification, in 1791, and yes, the story does involve the
Case 1: United States vs. Cruikshank
Well it took a while before the highest court in the land heard a case on the 2nd amendment
(1876 to be precise) and that first case actually involved the KKK and states' rights in the
wake of the Civil War.
After the conclusion of the Civil War, the newly reunited nation was in the midst of
Reconstruction when they passed the 1870 Enforcement Act, which was designed to prevent mobs run
by private citizens and groups like the KKK from blocking newly freed black citizens’
access to Constitutional rights - which seems like a good law.
But in 1873 a mob of white residents who were sometimes collaborators of the KKK and would
later go on to form a terrorist group called “The White League” in 1874, murdered an
estimated 100 African Americans who had occupied the Colfax Louisiana State House.
Three of the members of the mob were convicted of violating the 1870 Enforcement Act, under
the charge that they had prevented black citizens from assembling peacefully, exercising their
right to vote, and that they had curtailed the black citizens’ 2nd amendment rights
to bear arms.
However the court ruled that the 2nd amendment was only designed to stop the federal government
from “infringing” on citizens’ rights to own arms as a safeguard against potential
“tyranny.”
Therefore state governments and other private citizens couldn’t be charged with taking
someone else’s right to bear arms away.
But the question of the “militia” and what defines a “well regulated militia”
actually lasted through the next two supreme court rulings on the 2nd amendment
and that brings us to case 2, Presser vs. Illinois.
Herman Presser was part of an armed citizen militia of workers in Cook County, Illinois,
that had ties to the Socialist Labor Party.
And he led a group of several hundred armed citizens through the streets in protest in
1879 and was found guilty of violating Illinois’ state laws about who could organize a militia.
Essentially the law stated that unless you were a member of an already recognized volunteer
militia of the state of Illinois, the federal government, or had special recognition from the
governor, then you could not organize an independent militia.
And Presser disagreed, stating that the 2nd amendment protected his group’s right to
organize a militia to protect themselves from tyranny.
But the Supreme Court disagreed, saying that while the federal government could not limit
“well regulated militias” the state government could.
So armed militias were allowed but only if the state agreed to it.
But that wasn’t the last we’d heard of the 2nd amendment because the dawn of the
20th century brought us even more debate about how and why someone would organize a militia
and what kinds of weapons were necessary in these efforts.
And the surprising culprit behind this new twist was none other than Al Capone and the
mysterious Valentine’s Day Massacre of 1929.
Case 3: United States v. Miller.
Ok so we’re back in Illinois (specifically Chicago) on February 14th, 1929, when 7 criminal
associates of mobster George “Bugs” Moran were gunned down in a garage.
And although most people suspected the infamous Al Capone was behind the hit job, no one was
ever brought to trial for the murders, which have now become something of American historical
folklore mixed in with a heavy amount of conspiracy theory.
But the Valentine’s Day Massacre, and similar crimes like it, began to shift the cultural
conversations around gun ownership more towards what kind of guns it was reasonable for a
private citizen who is unaffiliated with any type of law enforcement or military to carry.
But the militia debate was still a big part.
In 1934, the federal government passed the National Firearms Act, which imposed taxes
and restrictions (including new registration laws) on certain kinds of guns like machine
guns and sawed off shotguns.
And the ambition here was not only to impose new taxes, but also to limit the use and spread
of guns that were frequently used in the commission of gang crimes, like the St. Valentine’s
Day Massacre.
So back to the Supreme Court, a man named Jack Miller and another man were found guilty,
under that current version of the National Firearms Act, of carrying an unregistered
sawed off shotgun across state lines, which was one of the restricted weapons.
And when his case (United States v. Miller) reached the Supreme Court in 1939, the court
stuck by the legality of the National Firearms Act, noting that, “...[i]n the absence of
any evidence tending to show that possession or use of a [sawed-off] shotgun . . . has
some reasonable relationship to the preservation or efficiency of a well regulated militia,
we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
Thus reinforcing the federal government's ability to regulate particular types of guns.
Ok so 3 out of the 5 Supreme Court rulings on the question of the 2nd amendment focused
on states’ rights versus federal rights, and the organization of militias.
But when did we start to see the current interpretation of the law as just “the right to bear arms?”
And how did the shift from a “well regulated militia” to arguments about individual self
defense occur?
Well the National Firearms Act proved to be pretty contentious.
It required that people transferring as well as those who were already in possession of
restricted firearms had to pay taxes on the gun and also report those weapons to the government.
As a result, the Treasury Department could give information to State governments about
people who registered their restricted or banned weapons and those people could be prosecuted
under State laws.
So in the 1968 Haynes case, the Supreme Court found that this regulation violated gun owners’
protection from self-incrimination under the 5th amendment and as a result the 1934 act
became “virtually unenforceable.”
We also have to add then NRA into this story.
Because in 1977, the National Rifle Association experienced a huge shift in their political agenda.
Prior to the 1977 convention (known as the “Revolt at Cincinnati”) the NRA’s agenda
in the mid 20th century focused heavily on hunting, conservation, and marksmanship.
But the new contingent that took over that year’s convention was invested in transforming
the agenda to center squarely on individual gun ownership and a narrower interpretation
of the 2nd amendment.
From this point forward the group gains traction as a gun’s rights lobby organization, and
moves from a relatively bipartisan hobbyist group to a political powerhouse that makes
individual interpretation of the 2nd amendment as key part of its agenda.
So we’re just up to our final 2 Supreme Court rulings on the 2nd amendment from 2008
and 2010, and these ones absolutely 100% have to do with an individual’s right to gun ownership.
But they’re less way back history and more current headlines, and both of these decisions
mark a pretty big shift from the Court’s previous rulings on the matter.
The 2008 ruling, in District of Columbia v. Heller, found that restrictive gun regulations
in the District of Columbia were an infringement on an individual citizen’s rights to bear
arms for the purposes of lawful self defense, even outside of any well regulated militia.
And a similar decision in 2010’s McDonald v. Chicago found that 2nd Amendment rights
could not or should not be limited by state governments (since Chicago had enacted gun
regulations that prevented many if not most private citizens from purchasing handguns).
These two recent decisions focused heavily on the individual “right to bear arms”
and less on the "well regulated militia."
So how does it all add up?
Well, even though Heller in 2008 and McDonald in 2010 represent the current status of rulings
on the 2nd amendment, the fact that they center individual gun ownership for the purposes
of self-defense and not the regulation of militias could stem from a couple of different
avenues.
The first is that after the Civil War, the National Guard took up the mantle of state
protection, making militias less central to interpretations of the 2nd amendment.
The second is that around the 1920s and 1930s, we started to see an increase in discussion
not only of what makes a well regulated militia, but also what kinds of guns should or shouldn’t
be protected under the second amendment.
But these rulings all focused on stopping the federal government from limiting the second
amendment and heavily favored the states...
However, although Heller did determine that the right to lawful individual gun ownership
was protected under this current interpretation of the 2nd amendment, the late Justice Antonin
Scalia did note that the right to self-defense and individual gun ownership under the 2nd
amendment “is not unlimited.”
So, whichever side you believe is correct, it looks like this debate will continue to rage on.
So what what do you think?
Anything to add to our timeline on interpretations of the 2nd amendment and the “well regulated militia"?
Drop them below with all of your citations on local history, the Brady Bill, and variations
in state laws and we’ll see you next week!
I had fun last week hanging out with Vanessa from Braincraft but before we get to that,
I wanted to let you know about the new PBS Digital Studios series “America From Scratch”
It asks big questions about how we would re-make America if we started over today.
They ask fun questions like, Should 12-year-olds be allowed to vote?
What if there were no states?
Do we even need a president?
There’s a link in the description so you can check it out.
Okay, on to whether or not breakfast is the most important meal of the day!
Tony Vasile on Youtube said he enjoyed the crossover!
Speaking for team Danessa (which is what I’ve renamed us) I say thanks Tony!
We enjoyed collaborating on this one!
Julie Wylie on Facebook enjoyed the food puns, which makes me feel quite proud since she’s
a dietitian.
Mission accomplished and thanks for writing Julie!
And “The Pwnzerwilldie” on Youtube (a viewer with a sharp mind and a bit of a morbid
username) asked if we could do an episode on how and when drinking coffee in the morning
became normalized and what the effects of caffeine are on our bodies.
That’s another good area for a collaboration so if there are any nutritionists or folks
on Youtube good with biology and anatomy (hint hint, Joe Hanson) then hit us up!
We’d love to answer more crossover questions!
So keep those comments coming and we’ll see you next week!