The conversation
Five types of gun laws the founders loved
The Second Amendment is one of the most cited provisions in the American Constitution, but also one of the most misunderstood. The 27 words that make up the Second Amendment seem to confuse modern Americans on both the left and the right. Ironically, those at both ends of our contemporary political spectrum launch the Second Amendment as a barrier to robust arms regulation. Defenders of arms rights – mainly, but not exclusively, from the right – seem to believe that the Second Amendment prohibits many forms of arms regulation. On the left, frustration with the lack of progress in modern arms control leads to periodic calls for the amendment to be repealed. Both of these beliefs ignore an irrefutable historical truth. The creators and adopters of the Second Amendment were generally fervent supporters of the idea of well-regulated freedom. Without strong governments and effective laws, they believed, freedom inevitably degenerated into licentiousness and, ultimately, anarchy. Diligent scholars of history, especially Roman history, the federalists who wrote the Constitution realized that tyranny most often resulted from anarchy, not from strong government. I have been researching and writing about the history of arms regulation and the Second Amendment for the past two decades. When I started this research, most people assumed that regulation was a relatively recent phenomenon, somewhat associated with the rise of great government in the modern era. In fact, while the founding generation certainly appreciated the idea of an armed population, they were also fervent supporters of arms regulations. Consider these five categories of gun laws that the Founders endorsed. 1: Registration Currently, gun rights advocates in the United States are opposed to any form of registration – although such schemes are common in all other industrial democracies – and normally argue that registration violates the Second Amendment. This claim is also difficult to reconcile with the history of the nation’s founding. All colonies – except Quaker-dominated Pennsylvania, the only colony in which religious pacifists blocked the creation of a militia – enlisted local citizens, white men aged 16 to 60 in state-regulated militias. The colonies and then the new independent states maintained control of those privately owned weapons necessary for the service of the militia. Men can be fined if they attend a meeting without a well-kept gun in working order. 2: Public transport The modern arms rights movement has aggressively pursued the goal of expanding the right to carry weapons in public. American colonies inherited a variety of restrictions that evolved under English Common Law. In 18th century England, armed travel was limited to a few well-defined occasions, such as assisting peace judges and police officers. Members of the upper classes also had a limited exception for traveling with weapons. Concealed weapons, such as revolvers, were subject to even stricter restrictions. The City of London has completely banned the public carrying of these weapons. The American Revolution did not eliminate common English law. In fact, most colonies adopted customary law as it was interpreted in colonies before independence, including a ban on armed travel in populated areas. Thus, there was no general right to armed travel when the Second Amendment was adopted, and certainly no right to travel with hidden weapons. That right first emerged in the United States in the slave South decades after the Second Amendment was adopted. The market revolution of the early 19th century made cheap and reliable handguns available. As a result, homicide rates in the south have skyrocketed. In other parts of the country, traditional English restrictions on armed travel persisted with a major change. American law recognized an exception to this ban for individuals who had good reason to fear an imminent threat. However, at the end of the century, banning public transport was the legal norm, not the exception. 3: Laws that defend your land According to traditional English common law, a person had a duty to back down, not to defend his position. Deadly force was only justified if no other alternative was possible. It was necessary to retreat, until withdrawal was no longer possible, before killing an aggressor. The use of deadly force was justified only at home, where withdrawal was not required by the so-called castle doctrine, or the idea that “a man’s house is his castle”. The emergence of a more aggressive view of the right to self-defense in public, maintaining its position, emerged slowly in the decades after the Civil War. 4: Safe storage laws While some arms rights advocates try to demonize government power, it is important to recognize that one of the most important rights that citizens enjoy is the freedom to elect representatives who can enact laws to promote health and safety public. This is the foundation for the idea of orderly freedom. The regulation of gunpowder and firearms arises from the exercise of this basic freedom. In 1786, Boston acted on this legal principle, prohibiting the storage of a loaded gun in any domestic residence in the city. The weapons needed to be kept unloaded, a practice that made sense, since the black powder used in firearms at that time was corrosive. Loaded weapons also pose a particular danger in cases of fire, as they can shoot and injure innocent passers-by and those who fight fires. 5: Oaths of loyalty One of the most common claims heard in the modern Second Amendment debate is the claim that the Founders included this provision in the Constitution to make the right of revolution possible. But that statement is also based on a serious misunderstanding about the role that the right to bear arms played in American constitutional theory. In fact, the Founders engaged in large-scale disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on taking an oath of allegiance to the government. Individuals who refused to take such an oath were disarmed. The notion that the Second Amendment was understood to protect the right to take up arms against the government is absurd. In fact, the Constitution itself defines such an act as treason. Arms ownership and regulation have always existed side by side in American history. The Second Amendment poses no obstacle to passing sensible weapon laws. Failure to do so is not the fault of the Constitution; it is ours. This article was republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts. Read more: * Why Trump’s idea of arming teachers can miss the mark * How does US gun control compare to the rest of the world * How dangerous people get their guns in America As a researcher at the John Glenn School of Public Policy in the state of Ohio, Cornell was the principal investigator on a Joyce Foundation grant-funded project to research the history of arms regulation. Part of the research cited in this essay was carried out under this grant.